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tislrict Court of % Initelj Stales 



FOR THE SOUTHERN DISTRICT OF NEW-YORK. 



THE UNITED STATES 

vs. 

THE SCHOONER STEPHEN HART AND HER 
CARGO. 



IN PRIZE. 



OPINION OF THE COURT, 



BY JUDGE, BETTS. 



JOHN W. AMEEMAN, PEINTEK, 

No. 47 Cedar Street. 



1863. 






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al 



Jislrtct Court ai tjc Initeir ^Mts 



FOR THE SOUTHERN" DISTRICT OF NEW-YORK. 



The United States 

vs. 

In Prize. 

The Schooner Stephen Haet and| 

HER CARGO. 



OPINION OF THE COURT. 

Betts, J. The schooner Stephen Hart was captured, as law- 
ful prize of war, by the United States vessel of war Supply^ 
on the 29th of January, 1862, in latitude 24° 12' north, and 
longitude 82° 14' west, oif the southern coast of Florida, 
about 25 miles from Key West, and about 82 miles from 
Point de Yeacos in Cuba, and was sent to the port of New- 
York for adjudication, under convoy of her captor. A libel 
was filed against her in this Court on the 18th of February, 
1862. On the 1st of May, 1862, a claim to the vessel was in- 
terposed by John Myer Harris, of Liverpool, England, as her 
sole owner. The test oath to that claim was made by Charles 
N. Dyett, the master of the schooner. On the same day, a 
claim was put in to the wliole of the cargo of the schooner, by 
Samuel Isaac, on behalf of himself and Saul Isaac, as co- 



4 

partners and subjects of Great Britain, doing business in Eng- 
land under the firm name of S. Isaac, Campbell & Co., and 
claiming to be the sole owners of the cargo. The test oath to 
that claim was made bj Samuel Isaac. On the 25th of Octo- 
ber, 1S62, another claim to the schooner on behalf of 
Harris was interposed. In this second claim, Harris is de- 
scribed as late of Liverpool, England, but now of Sherbro', on 
the "Western coast of Africa, at present residing in England, 
merchant. This second claim sets np that he is the sole 
owner of the schooner, and is a subject of the crown of Great 
Britain. 

In the test oath to the second claim of Harris, and which 
test oath is made by him, it is alleged that, on the 28th of Sep- 
tember, 1861, lie agreed to become the purchaser of the 
schooner for £1,750, to be paid October 28th, 1861 ; that it 
was afterwards arranged that the money should be paid on the 
14th of October; that an abatement of £5 10s. 3d. was 
thereupon made from the purchase money; that the bal- 
ance of £1,Y44 9s. 9d. was paid ; that the vessel was at Bristol, 
England, at the time of her sale ; that, after such purcliase, she 
took a cargo from Bristol to London, and was then loaded, 
partly at London and partly at Erith, with a cargo of arms, 
ammunition and military clothing ; and that such cargo was 
the sole property of S. Isaac, Campbell & Co. It is to be noted 
that this test oath does not state from w^hom he purchased 
the scliooner, or to wliom he paid the money, or whether he 
received any bill of sale. It is also silent as to any hiring or 
charter of the vessel to S. Isaac, Campbell & Co. It states that 
the vessel " cleared for the port of Cai'denas j'''* that it was not 
intended that she should "enter, or attempt to enter, any port 
of the United States;'''' that "her true and only destination 
with said cargo was Cardenas, wliere the same was to be de- 
livered ;" that the vessel w^as thence to sail to the claimant in 
Africa, if she obtained a suitable cargo for that country; and 
that the vessel and her cargo are British property. 

The test oath of Samuel Isaac to the claim on bolialf of S. 
Isaac, Campbell & Co. to the whole of the cargo, alleges that 



/^<i 



tbe cargo was shipped by that firm, consisting of himself 
and ISaul Isaac, on or about December 2d, 1861, partly at Lon- 
don and partly at Erith ; that the vessel was bound for Carde- 
nas in the Island of Cuba ; that the cargo consisted of arms, 
ammunition and military clothing, and is wholly the property 
of that firm ; that its members are British subjects; that the 
vessel cleared/br Cardenas ', that the cargo was destined for 
Cardenas; that it was not intended tliat the vessel should 
"enter, or attempt to enter, any port of the United States^ or 
that the cargo should be delivered at any port in the United 
States ^^"^ and that "the true and only destination Avas Carde- 
nas, where the same was to be delivered, and the vessel was 
thence to sail to Africa, if she obtained a suitable cargo for 
that country." It does not set up any charter of the vessel. 

The testimony in preparatorio, consisting of the depositions 
•of Charles I*^. Dyett, (the master,) Benjamin H. Chadwick, 
(the first mate,) John Leisk, (the cook and steward,) Charles 
ISTellman, (the second mate,) and Robert Allan, (an able sea- 
man,) was taken in February, 1862. The case was not sub- 
mitted to the judgment of tlie Court until the term of July, 
1863. It was suggested at the hearing, in excuse of what 
seemed to be the great delay in the case, that such delay was 
owing to the pendency before the Supreme Court of the Uni- 
ted States, on appeal, until March last, of various prize suits, 
which it was supposed might disj)Ose of material questions in- 
volved in this case. But, from such report of the decisions in 
those cases as this Court has been furnished with, it does not 
appear that the main questions involved in the present case 
have been determined by the Supreme Court in any of the 
cases alluded to. 

Various interlocutor}^ proceedings took place in the present 
case, a reference to some of which is necessary. 

Before the filing of the libel, and on the 14th of February, 
1862, this Court ordered that so much of the cargo of the 
schooner as consisted of arms, powder and munitions of war, 
should be placed in the custody of the commandant of the 
!N"avy-yard at New- York, and that the Prize Commissioners 



6 

should make a full inventory of all the articles delivered to 
the commandant, and that they should be appraised, and the 
appraisement be filed with the inventory. In pursuance of 
this order, the appraiser appointed by the Court, Mr. Orison 
Blunt, discharged the cargo of the schooner, and stored it in 
the ordnance stores at the Navy-yard. In his report, which 
was filed on the 25th of March, 1862, he states that, in un- 
loading the vessel, he did not have the benefit of any invoice ; 
that he took an accurate account of every case, box and bale, 
and of their numbers and marks ; tliat the vessel was stowed 
with great care, and the bales and cases pressed in with jack- 
screws, which made great precaution necessary in taking them 
out, for fear of an explosion of some of the ammunition or 
loaded shell; that, upon opening the after hatch and- taking 
out some of the cases, he discovered some four tons of pow- 
der, and also 1,008 loaded shell, with percussion primers affix- 
ed, and some 600,000 ball cartridges, or fixed ammunition for 
small arms, which were all removed and placed in the maga- 
zines of the Navy yard ; that, after all the cargo had been 
placed in the ordnance stores without any loss or damage, he 
opened every entire case and bale, and inspected and counted 
accurately every article, and found them to be all in good con- 
dition, and that every article was of value for use in the army 
and navy of the United States, except a large quantity of 
" rebel buttons," manufactured in Great Britain and stamped 
with a "rebel device." Tiie appraiser annexed to his report a 
catalogue of the cargo and his appraisement of each article. 
Tbe following articles appear to have constituted the cargo of 
the vessel: 5,740 long Enfield rifles, with triangular bayonets; 
1,260 short Enfield rifles, with sabre bayonets ; 660 rifled En- 
field carbines, with sabre bayonets ; 2,640 British rifled mus- 
kets, with triangular bayonets; 200 British smooth bore mus- 
kets, with triangular bayonets; 320 Brunswick rifles, with 
sabre bayonets ; 375 cavahy sabres ; 6,800 gray blankets ; 
1,750 white blankets; 4: of Blakeley's 2f inch bore rifled can- 
non, (six pounders,) with 2,000 cartridge bags and 1,008 shell 
for the same, loaded and capped ; 120,000 cartridges, fixed 



/^y 



ammunition for Enfield rifles ; 100,000 percussion caps ; 2,160 
cartridge boxes ; 4,095 knapsacks; 4,000 ball bags and belts; 
100,000 Brunswick rifle cartridges ; 410,000 Minie rifle car- 
tridges ; 5,000 cartridges for smooth bore English muskets, each 
cartridge consisting of a round ball and two buck-shot ; 1 ,540 
yards of gray army cloth; 11,453 yards of steel mixed gray 
army cloth for uniforms ; 625 gross of brass buttons " for in- 
fantry, artillery and cavalry, for the rebel army, marked C. S. 
A." ; 15,432 pairs of stockings ; 2,000 pairs of brogan slices ; 
592 pairs of russet shoes, Blucher pattern ; 762 pairs of black 
leather shoes, Blucher pattern ; 2,220 water-proof covers for 
mess tins ; IT cases and 3 bales of trimmings for army clothes 
and uniforms, consisting of linings, cord, braid, lace, thread, 
buckram, &c. ; 109 yards of scarlet cloth for army uniforms ; 
7,500 yards of white twilled flannel for lining for army over- 
coats ; 2,250 yards of brown holland for the same purpose ; 
1,040 gross of buttons for army uniforms and clothing; 7,800 
pounds of cannon powder, and a considerable quantity of car- 
tridge paper, cones, and other appurtenances for small arms, 
gun slings, medicine, lint, bayonet scabbards, surgeons' equip- 
ments, scissors, thimbles, books and eyes, shears, canvas lin- 
ing, alpacca and tarpaulings. The appraisement of the entire 
cargo was $238,945 37. 

Under orders of this Court of the 3d of March and IGth of 
April, 1862, the Enfield rifles and certain other articles found 
on board of the schooner were delivered to the Navy Depart- 
ment for the use of the United States, at the appraised value 
of $169,467 50. By another order of the Court, made March 
4th, 1862, another portion of the cargo, amounting to the ap- 
praised value of $14,196 11, was delivered to the War Depart- 
ment, the Ordnance Department and the Sanatory Depart- 
ment, for the use of the United States. 

Under an order of this Court, made on the 7th of May, 1862, 
the schooner and the remainder of her cargo, wdiich remainder 
amounted, at its appraised value, to $55,281 76, were sold at 
public auction. The vessel was sold for $10,000. The pro- 
ceeds of the vessel and of her cargo, including the amounts paid 



8 

by the Navy and War Departments for the articles taken by 
them, were paid into the registr}^ of the Court. 

After the cook and steward, John Leisk, had been examined 
on the 13th of February, 18G2, an affidaTit made by him on 
the 25th of February, 1862, was presented to the Court, in 
which he stated that, in giving his testimony before the Prize 
Commissioners, he did not fully answer the 32d interrogatory 
in relation to certain papers on board, and their description, 
and what was said on their being discovered, although he had 
testified to those facts on an examination made of him on 
board of the capturing vessel. An order was thereupon made 
by the Court on the same day, on the motion of the District 
Attorney, that the 32d standing interrogatory be propounded 
anew to the witness Leisk, and that his additional answer 
thereto be received and added to his deposition, with the like 
force and effect as if the same had been taken at the time of 
his original examination. On the same day that interrogatory 
M^as again propounded to him, and his further answer thereto 
forms part of the depositions in jpreparaiorio. 

On the 24th of October, 1 862, the Court, on the motion of the 
District Attorney, made an order that Benjamin H. Chadwick, 
the first mate, who had been examined in pre^aratorio, on the 
standing interrogatories, on the 13th of February, 1862, should 
be again examined by the Prize Commissioners on the stand- 
ing interrogatories, and that the question of the admissibility 
of his evidence so to be given should stand over for future de- 
termination. This order was founded upon an afiidavit made 
by Chadwick on the 21st of October, 1862, in which he stated 
that he was one of the persons captured on the Stephen Hart, 
and was entered upon her shipping articles as her first mate, 
although in fact he was entrusted with the virtual control ; 
that he had examined a copy of his testimony given by him 
on his examination on the 13th of February, 1862, and found 
that his answers to the 11th, 36tli and 39th interrogatories, as 
well as to any others which asked for the true destination 
of the vessel and her cargo, on the voyage on which she was 
captured, were imperfect, and did not disclose the entire truth 



/^/ 



9 



in relation to tlie subject-matter inquired of, and that lie de- 
sired the privilege of correcting the same on a re-examination, 
by stating that he well knew that the real destination of the 
cargo of the vessel, if not of the vessel herself, was one of the 
blockaded " Confederate ports of the Southern States," and 
that the j^ort of Cardenas in Cuba was to be used simply as an 
intermediate port of call and of transhipment of the cargo, if 
it was there determined by Charles J. Helm, an agent there of 
the " Confederate States," whose instructions the witness was 
directed to follow, that the cargo should be transhipped into a 
steamer, which could, with greater facility, be used in running 
the blockade; that the witness was employed for that purpose by 
reason of his knowledge of the Southern coast, and of the navi- 
gation of the blockaded ports and harbors, and was so em- 
ployed after his examination specially on that point at the 
counting-house of S. Isaac, Campbell & Co., the owners of the 
cargo, in London, where, at tlie time, were William L. Yancey 
and other persons interested in the " Southern insurrection ;" 
that he, the witness, had been in no manner influenced to 
make such disclosure by the libellants or the captors, or any 
one in any manner connected with either of them, but had 
been induced to do so solely by the persuasions of his wife, 
who was a loyal woman then residing in Boston, and whose 
just reproaches had caused him to regret that he had ever lent 
his aid to such a cause, and to determine, as far as he could, to 
atone for whatever mischief he might have done. Upon the 
hearing of the motion for the further examination of Chad- 
wick, the application was opposed by the claimants of the 
cargo, upon an affidavit made by Chadwick on the 6th of May, 
1S62, in which he stated that certain letters and papers be- 
longing to him were seized by the captors, and retained by 
them until the 28th of April, 1862, when, without any applica- 
tion to the Court, a portion of them were taken from the rest 
of the papers seized on board of the schooner, and handed 
over to him by Mr. Elliott, one of the Prize Commissioners ; 
that the letters so handed to him were a part of the letters 
mentioned in the examination in preparatorio of John Leisk, 



10 

and stated by Leisk to have been placed by liim in a tea-pot 
at the request of Chadwick, and to have been afterwards dis- 
covered by the crew of the capturing vesseL The Court was 
subsequently furnished with an affidavit made by Mr. Elliott, 
in which he stated that, after tlie arrival of the schooner at 
New- York, one of the officers in charge of her placed in his 
hands some letters which he represented to be private papers 
belonging to Chadwick ; that those letters were not presented 
by the prize master as a part of the papers seized with the 
schooner as her papers, but as private letters belonging to 
Chadwick ; that, under the advice of the Assistant District 
Attorney, and at the request and with the consent of Chad- 
wick, the deponent carefully read the letters, and found them 
to be only private letters to Chadwick from his wife, and that 
there was not in them one word relating to the schooner, or 
her cargo, or her voyage, or her destination; and that there- 
upon, on the furtlier advice of the Assistant District Attorney, 
the letters were handed to Chadwick as his private property, 
several months before his re-examination, and with no reference 
thereto, and with no knoAvledge or suspicion that any such re- 
examination would ever occur. 

There were found on board of the schooner, at the time of 
her capture, her register and sundry bills, certificates, tele- 
graphs and letters, a clearance, two logbooks, a copy of the 
United States Coast Survey for 1856, and sundry other papers, 
but no invoices, no bills of lading and no manifest. 

The register of the schooner is dated at Liverpool, England, 
October 15th, 1861. It r/ipresents her as having been built 
at Greenport, in the State of New-York, in the United States, 
in the year 1859, and her foreign name as having been Ta- 
maulijpas. Her tonnage is stated at 219.85 tons. Her owner is 
stated to be John Myer Harris, of Liverpool, merchant. The 
register contains the following printed memorandum at its 
foot: "Notic^. A certificate of registry granted under the 
Merchant Shipping Act, 1854, is not a document of title." 
On the back of the register is endorsed a certificate, made at 
the Custom House in London on the 15th of November, 1861, 



/J^f 



11 



stating that Charles K. Djett had that day been appointed 
master of the schooner. 

^ There were also found on board of the schooner a letter 
signed " R. H. Leonard, ship Alexander, Confederate States," 
dated at Bristol, England, October 29th, 1861, and addressed 
to Chad wick ; and a letter from Leonard addressed " To Mr. 
B. H. Chadwick, alias Tommy, first officer Stephen Hart," 
purporting to be written at Bristol, England, but without 
date; and a letter signed "John Johnson, ship Koami, care 
J. P. Snell & Co,, Bristol, England," and addressed "Mr. 
Benjamin H. Chadwick, schooner Stephen Hart, Surrey Canal, 
London," and dated at Bristol, England, October 29th, 1861. 
The contents of these three letters will hereafter be specially 
referred to. 

By sundry certificates found on board of the schooner, it 
appears that she cleared from London, on the 19th of ]N"ovem- 
ber, 1861, for Cuba generally, neither the port of Cardenas 
nor any other port in Cuba being mentioned as her destination 
in any of her regular papers. 

There was also found on board of the schooner a letter in 
the following words : " 71 Jermyn street, London. S. W., m- 
vember 19, 1861. J. Crawford, Esqre, H. M. Consul General, 
Havannah. Dear Sir : In confirmation of ray last, permit me 
to ask your assistance and advice for Captain Dyett, of the 
schooner ' Stephen Hart,' should he need it during his stay at 
Havannah. Permit me to be yours, most faithfully, Saul 
Isaac." 

There was also found on- board of the schooner a telegraphic 
despatch from S. Isaac, Campbell & Co., 71 Jermyn" street, 
London, to Lloyd's agent at Deal, received at Deal November 
23d, 1861, in the following M^ords: "Please detain schooner 
Stephen Hart, bound for Cardenas, for orders. We pay all ex- 
penses. Reply per telegraph. Letter per post." There was 
also found a letter dated "London, :N'ov. 22, 1861," in the 
following words: "Captain Dyett, schooner Stephen Hart. 
Dear Sir,— We require some matters arranged before the 
schooner leaves. You will receive this per Lloyd's agent. 



12 

Attend to the orders, and wait nntil jou hear from yours 
truly, S. Isaac, Campbell & Co." There was also found 
another telegraphic despatch from S. Isaac, Jermyn street, 
London, to Lloyd's agent at Deal, received at Deal November 
24th, ISiil, in the following words: " Captain Dyett will pro- 
ceed on his voyage at once, and make up for lost time. Wish 
him a successful trip." 

Tlie shipping articles of the crew of the schooner, found on 
board, are dated ISTovember 16th, 1S61, and specify that the 
voyage is to be " from London to Cuba and Sierra Leone, and 
any port ^ ports on coast of Africa, ^~ !North ~ South 
America ~ West Indies, and back to a final port of dis- 
charge in the United Kingdom. Voyage not to exceed 
twelve months." On these shipping articles the name of 
Benjamin 11. Chadwick is entered as chief officer, his signa- 
ture appearing upon them, and he is stated to be an Ameri- 
can, aged 29 years, and to have last served on board the ves- 
sel called the Tamaulipas, and to have been discharged there- 
from at London on the 2d of JS^ovember, 1861. The date of 
his joining the Stephen Hart is stated as November 1st, 1861, 
although he is placed in a list under the head of " substitutes," 
with two others who are severally stated as joining the vessel 
November 22d and November 29th, and no place is inserted 
as the place of his joining the vessel, although the place is in- 
serted in the case of the other two substitutes. Tiie wages of 
Chadwick are put down as £9 per calendar month, the wages 
of the mate, whose place he took, being stated at £6 per 
month. In one of the two log-books found on board of the 
vessel, namely, the official log-book, the name of Benjamin II. 
Chadwick appears as mate of the vessel, and no other person 
is named as mate ; and the date of the commencement of the 
voyage is stated in that log-book as November 19th, 1861. 
In the other log-book, which is an ordinary sea log-book, 
there appears, under date of November 21st, 1861, an entry in 
the handwriting of Chadwick, by whom that log-book pur- 
ports on its face to have been kept, to the effect that the mate 
had not come to perform his duty, and the log-book then pro- 



/^/? 



13 



ceeds as follows: "Wherefore I, Benj. H. Chadwick, have 
this day engaged with Capt. Charles E". Dyett to proceed on 
the voyage, having been engaged as ship-keeper on board since 
the 2d of the present month, the crew consisting of six seamen, 
cook and steward, captain, mate and boatswain — in all num- 
bering ten persons." The shipping articles show eleven per- 
sons, there being seven seamen, one of the seamen, as appears 
by the official log-book, having been shipped at Gravesend on 
the 22d of November and discharged because of illness, at 
Deal, on the 29th of November, and another seaman having 
been shipped at Deal in his place on the last named day. 
The name of one seaman which appears on the shipping arti- 
cles does not appear on the official log-book, and there is a 
memorandum on the shipping articles that he deserted. This 
reduces the number of persons composing the crew to ten, in- 
cluding Chadwick. 

The entry on the title-page of the sea log-book is, that the 
schooner was on a voyage from London to Cardenas, Cuba, 
commencing November 19th, 1861, and that the log-book is 
kept by Benjamin H. Chadwick. It appears, from entries in 
that log-book, that the pilot took charge of the schooner " on a 
voyage to Cuba," on the 19tli of November, and that she was 
on that day " towed by steam from the Grand Surrey dock to 
Erith, to take in the remainder of cargo," and that she arrived 
at Erith the same day ; that, on the 20th of November, she 
took in from lighters some sixty cases of cargo, and that, on 
the evening of the same day, she was towed to Gravesend ; that 
she remained at Gravesend until the 22d of November, when 
she proceeded down the river, coming to anchor, in the after- 
noon, off the North Foreland Light ; that, on the 23d of No- 
vember, she proceeded to the Downs, where she came to an- 
chor, and where the " captain received instructions from par- 
ties in London" to wait until further orders ; that, on the 24th 
of November, she received orders to proceed on her voyage ; 
that she did not start until the 2d of December, her sea log 
commencing at noon on the 3d of December; that she pur- 
sued her voyage through December and January, no particu- 



14 

lar occurrence being noted until the 15th of January, when 
she passed 18 miles to the northeast of Desirada Island, one of 
tlie Leeward Islands in the West Indies, and also between the 
Island of Gandaloupe and the Island of Montserrat, in the 
latitude of about 16° 30' N. ; that, from this point, she pro- 
ceeded to the southward of Hay ti and to the northward of the 
Island of Jamaica, passing the latter on the 21st of January, 
and thence to the southward of the Grand Cayman Island on 
the 23d of January, and thence around the western end of 
the Island of Cuba, making Cape St. Antonio, the extreme 
western point of that island, at 3.30 P. M. on the 26th of 
January, and seeing the last of Cape Antonio light, 20 miles 
distant, bearing south half east, at 10 P. M. of tliat day, her 
latitude, by observation at noon on the 27th of January', be- 
ing 23° 24' north. There are no entries in the log-book after 
the latter hour. 

The Coast Survey found on board of the schooner, as before 
mentioned, is a report from Professor Bache, Superintendent 
of the United States Coast Survey, for the year ending Novem- 
ber 1st, 1856, and contains, among other things, the following 
charts : A comparative chart of the entrance into Charleston 
harbor by Maffit's Channel — A preliminary chart of the en- 
trance into North Edisto River — A preliminary chart of the 
sea-coast of South Carolina, from Charleston to Tybee, Georgia, 
with sailing directions — A preliminary chart of St. Simon's Bar 
and Brunswick Harbor — A preliminary chart of St. Mary's 
Bar and Fernandina Harbor — A comparative chart of the 
same — Two charts of St. John's Eiver — And a preliminary 
chart of the Florida Reefs. These charts, as folded in the 
book, have each of them written in pencil on the outside the 
nature of its contents, thus : " Maffit's Channel ;" " North 
Edisto ;" " Sailing directions for several So. Ca. & Ga. ports ;" 
"St. Simon's;" "Fernandina;" " St. John's River;" "Flori- 
da Reefs." 

Captain Dyett, on his examination in preparatorio, produced 
two letters, which are annexed to his deposition. One of them 
is a letter of instructions to himself from S. Isaac, Campbell & 



/S/ 



15 



Co., and is dated " 71 Jermyn street, Military Warehouse, late 
21 St. James street, London, S. W., November 19, 1861;" 
and the other is a letter from Sanl Isaac to " Charles J. Helm, 
Esq., care of J. Crawford, Esq., Havannah," and is dated " 71 
Jermjn street, London, November 19, 1861." The contents 
of these two letters, and the circumstances under which they 
were produced by Captain Dyett, will be referred to here- 
after. 

Before proceeding to a consideration of the merits of the 
case, it is proper to advert to the objections made to the second 
examinations of the witnesses Leisk and Chadwick. The 
question of the admissibility of the second deposition of Chad- 
wick was ordered by the Court to stand over to be determined 
at the hearing of the main cause. The question of the admis- 
sibility of depositions given on the re-examination of persons 
found on board of a ca]3tured vessel, is one resting in the sound 
discretion of the Court, and no authority has been cited which 
decides that the practice is one that is not to be permitted 
under circumstances such as existed in the present case. The 
case of The Pizarro (2 Wheaton^ 227) is not regarded as an 
authority against the course pursued in this case. "While the 
Court ought to guard the practice with care, lest it may be the 
means of introducing abuse and of leading to fraud and impo- 
sition, the present case seems, on the fullest consideration, to be 
one in which the propriety of admitting the re-examination of 
the witnesses Leisk and Chadwick cannot be questioned. If 
the case, upon the depositions as originally taken, without the 
re-examinations of the two witnesses, were a clear one in favor 
of the claimants, and free from all doubt, the Court would 
hesitate, perhaps, to admit the re-examinations. But, upon 
the testimony, without the re-examinations, the case is not only 
not one free from doubt, but one clearly calling for the con- 
demnation of both the schooner and her cargo ; and the mat- 
ters testified to by those witnesses upon their re-examinations 
are not only entirely consistent in themselves, but are cor- 
roborated by the other testimony in the case, and by the docu- 
ments and papers found on board of the schooner. The cases 



16 

■which were cited by the counsel for the claimants upon the 
point of the admissibility of depositions taken on re exami- 
nation, {The Haabet, 6 Ch. Bob. 54 ; The Ostsee, Spinks^ 
Part 1, 189; The Leucade.ld. 227; The Aline and Fanny, 
Spinl's, Part 2, 327,) do not bear at all upon the question as 
to the admissibility of these re-examinations. Tliey merely 
affirm the well-known principles of prize law, that affidavits of 
the captors are not to be admitted where, on the evidence of 
the persons on board of the captured vessel, there are no cir- 
cumstances of suspicion in the case ; that the case is, in the 
first instance, to be tried on evidence coming from the cap- 
tured; that if, upon such evidence, no doubt arises, the property 
is to be restored ; and that the privilege on the part of the 
captors of giving further proof is, in such cases, rarely granted. 
Within these principles, this Court has endeavored, in all proper 
eases, to exhaust the knowledge of the persons found on board 
of captured vessels. Thus, in the case of the Peierhrff, pending 
in this Court at the same time with the present case, the deposi- 
tion of Captain Jarman, the master of the captured vessel, 
had been taken on the 1st of April, 18G3, he having intervened 
as claimant for the interest of his principals, the owners of the 
Peterhoff and her cargo, and having made the test oath to 
such claim on the 21st of April, 1863. Some of the other wit- 
nesses having deposed to the spoliation of papers in the case, 
the Court, upon an affidavit made by Captain Jarman, and 
upon the application of the claimants, and notwithstanding 
the objections of the counsel for the libellants and the captors, 
permitted Captain Jarman to be re-examined upon one of the 
standing interrogatories, and to add to his answer thereto the 
explanatory statement contained in his affidavit. This ex- 
planation, and the matters deposed to by liim on his further ex- 
amination, were intended to relieve the owners of the P^i^^r- 
Aojf and her cargo from the injurious effects of his conceal- 
ment, on his first examination, of matters which ought to have 
been testified to by him in answer to the standing interroga- 
tories, and of matters which were testified to by other wit- 
nesses. The Court is entirely satisfied that it exercised its 



/62^ 



17 



soiind discretion in permitting the re examination in the case 
ot the Feterhoff, and the exercise of a like discretion calls for 
^le admission in evidence of the depositions of Leisk and 
i-iiaciwick, taken on re-examination in the present case. They 
are accordingly admitted in evidence. 

Yeiy important qnestions of public law have been dis- 
cussed before the Conrt in the present case, and in the kindred 
cases of the ^^'^^^^^ and the Peterhoff, all of which, with 
the case of the Gertrude, have been pending before the Court 
at the same time. In the latter case no claimant appeared for 
either the vessel or the cargo, she having been captured while 
on a voyage from Nassau, in endeavoring to run the blockade 
into a port of the enemy. 

Many of the principal questions involved in the present 
case, and m the cases of the SpringhoJc and the Peterhof, are 
a ike ; and, as the conclusion at which the Court has arrived in 
all of tliose cases is to condemn the vessels and their cargoes 
I shall announce, in this case, the leading principles of pSblic 
law which lead to a condemnation in all the cases. 

On behalf of the libelants, it is urged in this ease, 3st. That 
the Stephen Hart and her cargo were enemy's property when 
the voyage m question was undertaken, and when the capture 
was made; 2d. That the schooner was laden with articles con- 
traband of war, destined for the aid and use of the enemy, and 
on transportation by sea to the enemy's country at the time of 
the capture ; 3d. That, with a full knowledge, on the part of the 
owner of the vessel and of the owners of her cargo, that the 
ports of the enemy were under blockade, the vessel and her 
cargo were dispatched from a neutral port with an intention 
on the part of the owners of each, that, in violation of the 
blockade, both the vessel and her cargo should enter a port of 
the enemy. 

On the part of the claimants, it is maintained, 1st. That the 
transportation of all articles, including arms and munitions of 
war, between neutral ports in a neutral vessel, is lawful in 
time of war; 2d. That if a neutral vessel, with a cargo be- 
longmgto neutrals, be in fact on a voyage from one neutral 

2 



18 

port to another, slie cannot be seized and condemned as la-R-ful 
prize, although she be laden with contraband of war, nnless it 
be determined that she was actually destined to a port of the 
enemy upon the voyage on which she was seized, or unless 
she is taken in the act of violating a blockade. 

It is insisted, on the part of the claimants, that the Stephen 
Hart was, at the time of her capture, a neutral vessel, carry- 
ing a neutral cargo from London to Cardenas — both of them 
being neutral ports — in the regular course of trade and com- 
merce. On tlie other side, it is contended that the cargo was 
composed exclusively of articles contraband of war, destined, 
when they left London, to be delivered to the enemy either 
directly, by being carried into a port of the enemy in the 
Stephen Hart^ or by being transhipped at Cardenas to another 
vessel ; that Cardenas was to be used merely as a port of call 
for the Stephen Hart, or as a port of transhipment for her 
cargo ; that the vessel and her cargo are equally involved in 
the forbidden transaction ; and that the papers of the vessel 
were simulated and fraudulent, in respect to her destination 
and that of her^cargo. A condemnation is not asked, if the 
cargo was in fact neutral property, to be delivered at Cardenas 
for discharge and general consumption or sale there, but is 
only claimed, if the cargo was really intended to be delivered 
to the enemy at some other place than Cardenas, after using 
that port as a port of call or of transhipment, so as to thus 
render the representations contained in the papers of the ves- 
sel false and fraudulent as to the real destination of the vessel 
and her cargo. 

It would scarcely seem possible that there could be any seri- 
ous debate as to the true principles of public law applicable 
to the solution of the questions thus presented ; and, indeed, 
the law is so well settled as to make it only necessary to see 
whether the facts in this case bring the vessel and her cargo 
within the rules which have been laid down by the most emi- 
nent authorities in England and in this country. 

The principles upon which the Government of the United 
States, and the public vessels acting under its commission, have 



/^6 



19 



Te as aw " " '"""" "T' '" "'"^""S ^^^'^ »<' -'- 

Tthf Tl *'";'"^'"'<"'''"^ '^^'"^d by the Navy Department, 

Fn M 4 ; >""l.' ,'.''' '" ""^ '^'•^™' commanders of the 

United States and which mstructions are therein declared to 

f™l cabW 't, ™'' °^ "'"'" '"^"••■««°n«. «o far as they are 
apphcableto the present case, is, that a vessel is not to be 

ITon iTe' t T'r ""T" ^r'""^ ™^^''' ^° <•-• - '^ -^-' 
reasonable to believe that she is engaged in carryino- contra- 
band o, war for or to the insurgents, and to tlieir ports^drc %, 
blolada" "' ^ "•^■^^'^'P'"'''''' " °'l'^"vise 'violating /e 

nJIr.hr'" ''?""■" °^"''"' instructions, so far as they bear 

of- n T ■"" '"™,'™'' '" *•"' '=^^«' '^ ^"' «" Wlieation 
ot the doctrine m regard to captures, laid down by tlie Govern- 
ment of the United States at a very early day. In an ordl 
nance of the Congi.ss of the Confederation, which went into 
effect on the 1st of February, 1782, (5 Wheaton, Append^, 
p. 120,) It was declared to be lawful to capture and to obtain 
condemnation of " all contraband goods, wares and merehan" 
discs to whatever nations belonging, although fonnd in a neu- 
tral bottom, ^fdestmedfor the me o^ an enemy." 

rhc soundness of these principles, and the fact that the law of 
nations, as apphcable to eases of prize, has been observed and 
applied by the Governmcut of the United States and its Courts 
during he present war, was fully recognised by Earl Eussell 

HerBritannicMajcsty'sprincipalSecretaryofStateforForeio-a 
Affairs, in his remarksmade in the House of Lords, on the ISth rf 
May last_ Earl Eussell there stated that the judgments of the 
United States Prize Courts, which had been reported to Her 
Majesty s Government during the present war, did not evince 
any disregard of the established principles of international law • 
that tlie law officers of the Crown, after an attentive considera^ 
tion of tile decisions which had been laid before them, were of 
opinion that there was no rational ground of complaint as to 
the J udgments of the American Prize Courts ; and that the law 



20 

of nations in regard to the search and seizure of neutral vessels 
had been fully and completely acknowledged by the Govern- 
ment of the United States. On the same occasion Earl Bus- 
sell remarked : " It has been a most profitable business to send 
swift vessels to break or run the blockade of the Southern 
ports, and carry their cargoes into those ports. There is no 
municipal law in this or any countr}^ to punish such an act as 
an oifence. I understand tliat every cargo which runs the 
blockade and enters Charleston is worth a million of dollars, 
and that the profit on these transactions is immense. It is 
well known that the trade has attracted a great deal of atten- 
tion in this country from those that have a keen eye to such 
gains, and that vessels have been sent to Nassau in order to 
break the blockade at Charleston, Wilmington and other places, 
and carry contraband of war into some of the ports of the 
Southern States." He added : " I certainly am not prepared 
to declare, nor is there any ground for declaring, that the Courts 
of the United States do not faithfully administer the law ; that 
they will not allow evidence making against the captors ; or 
that they are likely to give decisions founded, not upon the 
law, but upon their own passions and national partialities." 
Pie also said, that in a case of simulated destination, that is, a 
vessel pretending that she is going to Nassau, when she is in 
reality bound to a port of the eueiliy, the right of seizure exists. 
The then Solicitor-General of England (Sir Eoundell Pal- 
mer) stated, in the House of Commons, on the 29th of June 
last, referring to the cases of the Dolphin and the Pearly 
decided by the judge of the District Court for the Southern 
District of Florida, (those vessels having been captured while 
ostensibly on voyages from Liverpool to Nassau, and it hav- 
ing been held by the Court that the intention of the owners of 
the A'essels was that they should only touch at Nassau, and 
then go on and break the blockade at Charleston,) that " if 
the owners imagined that the mere fact of the vessel touching 
at Nassau, when on such an expedition, exonerated her, they 
were very much mistaken ;" that the principles of the judg- 
ment in the case of the Boljyhin " were to be found in every 



/3^ 



21 



volarae of Lord Stowell's decisions ;" that it was well known 
to everybody that there was a large contraband trade between 
England and America by way of Xassan ; that it was absnrd 
to pretend to shut their eyes to it ; and that the trade with 
Nassau and Matamoras had become what it was in conse- 
quence of the war. 

The Foreign Office of Great Britain, in a letter to the owner 
of the Peterhoff, on the 3d of April last, announced as its con- 
clusion, after having communicated with the law officers of 
the Crown, that the Government of the United States has no 
right to seize a British vessel hona fide bound from a British 
port to another neutral port, unless such vessel attempts to 
touch at, or has an intermediate or contingent destination to, 
some blockaded port or place, or is a carrier of contraband of 
war destined for the enemy of the United States ; that Her 
Majesty's Government, however, cannot, without violating the 
rules of international law, claim for British A'essels navigating 
between Great Britain and such neutral ports, any general 
exemption from the belligerent right of visitation by the cruis- 
ers of the United States, or proceed ujDon any general assump- 
tion that such vessels may not so act as to render their capture 
lawful and justifiable ; that nothing is more common than for 
those who contemplate a breach of blockade or the carriage of 
contraband, to disguise their purpose by a simulated destina 
tion and by deceptive papers ; and that it has already hap- 
pened, in many cases, that British vessels have been seized 
while engaged in voyages apparently lawful, and have been 
afterwards proved in the Prize Courts to have been reallj'' 
guilty of endeavoring to break the blockade, or of carrying 
contraband to the enemy of the United States. 

The cases of the Stephen Hart, the SpTinghoTi, the Petef'hoff, 
and the Gertrude, illustrate a course of trade which has 
sprung up during the present war, and of which this Court 
will take judicial cognizance, as it appears from its own records 
and those of other Courts of the United States, as well as from 
public reputation. Those neutral ports have suddenly been 
raised from ports of comparatively insignificant trade to marts 



22 

of the first magnitude. Nassau and Cardenas are in the vicin- 
ity of the blockaded ports of the enemy, while Matamoras is 
in Mexico, nj^on the right Lank of the Kio Grande, directly 
opposite the town of Brownsville, in Texas. The course of 
trade, in respect to Nassau and Cardenas, has been generally to 
clear neutral vessels, almost always under the British flag, 
from English jDorts for those places, and, using them merely as 
ports either of call or of transhipment, to either resume new 
voyages from them in the same vessels, or to tranship their 
cargoes to fleet steamers, with which to run the blockade, the 
cargoes being composed, in almost all cases, more or less, of 
articles contraband of war. The character and course of this 
trade, and its sudden rise, are very properly commented upon 
in a dispatch from the Secretary of State of the United States 
to Lord Lyons, of the 12th of May, 18G3. 

The broad issue upon the merits in this case is, whether the 
adventure of the Stephen Hart was the honest voyage of a 
neutral vessel from one neutral port to another neutral port, 
carrying neutral goods between those two ports onh^, or was 
a simulated voyage, the cargo being contraband of war, and 
being really destined for the use of the enemy, and to be in- 
troduced into the enemy's country by a breach of blockade 
by the Stephen Hart, or by transhipment from her to another 
vessel at Cardenas. It is conceded in the argument of the 
leading counsel for the claimants, that if the property was 
owned by the enemy, and was fraudulently on its way to the 
enemy as neutral property, it was enemy's property, and was 
liable to capture, no matter whence it came or whither it was 
bound ; and tbat, if the vessel were really intending and 
endeavoring to run the blockade, the property was liable to 
capture, no matter to whom it belonged or what was its char- 
acter ; but that if it was neutral property, in lawful commerce^ 
it was safe from seizure. 

The (question whether or not the property laden on board of 
the Stephen Hart was being transported in the business of 
lawful commerce, is not to be decided by merely deciding the 
question as to whether the vessel was documented for and 



/^J 



23 



sailing upon a voyage from London to Cardenas. The com- 
merce is in the destination and intended use of the property 
laden on board of the vessel, and not in the incidental, ancil- 
lary and temporary voyage of a vessel, which may be but one 
of many carriers through ■which the property is to l-eacli its 
true and original destination. If this were not the rule of tlie 
prize law, a very wide door would be opened for fraud and 
evasion. A cargo of contraband goods, really intended for the 
enemy, might be carried to Cardenas in a neutral vessel sail- 
ing from England with papers which, upon their face, import 
merely a voyage of the vessel to Cardenas, while, in fact, her 
cargo, when it left England, was destined by its owners to be 
delivered to the enemy, by being transhipped at Cardenas 
into a swifter vessel. And such, indeed, has been the course 
of proceeding in many cases during the present war. 

l^or is the unlawfulness of the transportation of contraband 
goods determined by deciding the question as to whether their 
immediate destination was to a port of the enemy. Thus it is 
held that, in order to constitute the unlawfulness of the trans- 
portation of contraband goods, it is not necessary that the 
immediate destination of the vessel and cargo should be to an 
enemy's country or port ; for, if the goods are contraband, and 
destined to the direct use of the enemy's army or navy, the 
transportation is illegal. If an enemy's fleet be lying, in time 
of war, in a neutral port, and a neutral vessel should carry 
contraband goods to that port, not intended for sale in the 
neutral market, but destined to the exclusive supply of the 
hostile forces, such conduct would be a direct interposition in 
the war, by furnishing essential aid in its prosecution, and 
would be a departure from the duties of neutrality. {Halleck 
on International Law^ chapter 24, section 11, page 576.) The 
proper test to be applied is, whether the contraband goods are 
intended for sale or consumption in the neutral market, or 
whether the direct and intended object of their transportation 
4s to supply the enemy with them. To justify the capture, it 
is enough that the immediate object of the voyage is to sup- 
ply the enemy, and that the contraband property is certainly 



24 

destined to his immediate use. TTliile it is true that goods 
destined for the use of a neutral country can never be deemed 
contraband, whatever be their character, and however well 
adapted thej may be to the purposes of war, yet, if they are 
destined for the direct use of the enemy's army or navy, they 
are not exempt from forfeiture on the mere ground that they 
are neutral property, and that the port of delivery is also neu- 
tral. (1 Duer on Insurance, C30 ; The Commercen^ 1 'Whea- 
ton, 388, 380.) 

If the contraband cargo of the Stephen Hart had been des- 
tined for the use of the fleet of the enemy, lying in the harbor 
of Cardenas, there could be no doubt tliat it might lawfully 
have been captured as prize of war on its way to Cardenas. 
And, if the contraband cargo was really destined, when it left 
its port of departure in England, for the use of the enemy in 
the country of the enemy, and not for sale or consumption in 
the neutral port, no principle of the law of nations, and no 
consideration of the rights and interests of lawful neutral com- 
merce, can require that the mere touching at the neutral port, 
either for the purpose of making it a new point of departure 
for the vessel to a port of the enemy, or for the purpose of 
transliipping the contraband cargo into another vessel, which 
may carry it to the destination which was intended for it wlien 
it left its port of departure, should exempt the vessel or the 
contraband cargo from capture as prize of war. If it was the 
Intention of the owner of the Stephen Hart, or of the owners 
of her cargo, having control of the movements of the vessel, 
that she should simply touch at Cardenas, and should proceed 
thence to Charleston, or some other port of the enemy, her 
voyage was not a voyage prosecuted by a neutral vessel from 
one neutral port to another neutral port, but a voyage which 
was, at the time of her seizure, in course of prosecution to a 
port of the enemy, although she had not as yet reached Car- 
denas, and although her regular papers documented her for a 
voyage from London to Cuba. Such a voyage was one be- 
gun and carried on in violation of the belligerent rights of the 
United States to blockade the ports of the enemy, and to pre- 



/3^ 



"Jd 



vent the introduction into those ports of arms and munitions 
of war. The division of a continuous transportation of contra- 
band goods into several intermediate transportations, by means 
of intermediate voyages by different vessels carrying such 
goods, cannot make a transportation which is, in fact, a unit, 
to become several transportations, although, to effect the entire 
transportation of the goods, requires several voyages by differ- 
ent vessels, each of which may, in a certain sense and for cer- 
tain purposes, be said to have its own voyage, and although 
each of such voyages, except the last one in the circuit, may 
be between neutral ports. Nov can such a transaction make 
any of the parts of the entire transportation of the contraband 
cargo a lawful transportation, when the transportation would 
not have been lawful if it had not been thus divided. The 
law seeks out the truth, and never, in any of its branches, 
tolerates any such fiction as that under which it is sought to 
shield the vessel and her cargo in the present case. If tlie 
guilty intention, tiiat the contraband goods should reach a port 
of the enemy, existed when such goods left their English port, 
that guilty intention cannot be obliterated by the innocent 
intention of stopping at a neutral port on the way. If there 
be, in stopping at such port, no intention of transhipping the 
cargo, and if it is to proceed to the enemy's country in the 
same vessel in which it came from England, of course there 
can be no purpose of lawful neutral commerce at the neutral 
port, by the sale or use of the cargo in the market there ; and 
the sole purpose of stopping at the neutral port must merely 
be to have upon the papers of the vessel an ostensible neutral 
terminus for the voyage. If, on the other hand, the object of 
stopping at the neutral port be to tranship the cargo to another 
vessel, to be transported to a port of the enemy, while the vessel 
in which it was brought from England does not proceed to the 
port of the enemy, there is equally an absence of all lawful 
neutral commerce at the neutral port ; and the only commerce 
carried on in the case is that of the transportation of the con- 
traband cargo from the English port to the port of the enemy, 
as was intended when it left the English port. This Court 



26 

holds that, in all snch cases, the transportation or voyage of 
the contraband goods is to be considered as a unit, from the 
port of lading to the port of delivery in the enemy's country ; 
that, if any part of such voyage or transportation be unlawful, 
it is unlawful throughout ; and that the vessel and her cargo 
are subject to capture, as well before aniving at the first neu- 
tral port at which she touches after her departure from Eng- 
land, as on the voyage or transportation by sea from such 
neutral port to the port of the enemy. 

These princij^les were laid down and applied by the District 
Court for the Southern District of Florida, in the cases of the 
Dolphin and the Pearly and the views of that Court are fully 
adopted by this Court, and are to be regarded as a part of the 
settled law governing prize tribunals. It is laid down in Hal- 
leck on International Law^ {chapter 21, section 11, page 504-,) 
that the ulterior destination of the goods determines the char- 
acter of the trade, no matter how circuitous the route by which 
they are to reach that destination ; that even where the ship 
in which the goods are embarked is destined to a neutral port, 
and the goods are there to be unladen, yet if they are to be 
transported thence, whatever may be the mode of conveyance, 
to an enemy's port or territory, they fall within the interdic- 
tion and penalty of the law ; that the trade from an enemy's 
country through a neutral port is likewise unlawful, and that 
the goods so shipped through a neutral territory, even though 
they may be unladen and transhipped, are liable to condem- 
nation ; that it is an attempt to carry on trade with the enemy 
by the circuitous route of a neutral port, and thus evade the 
penalty of the law ; that the law will not countenance any 
such attempt to violate its principles by a resort to the shelter 
of neutral territory ; that any such voyage is illegal at its 
inception ; and that the goods shipped are liable to seizure at 
the instant it commences. The same doctrines are asserted in 
1 KenCs Commentaries^ (i?«^^ 85, note «, 8M edition^) in 1 
Duer on Insurance, {x^age 568, section 13,) and in Jecher v. 
Montgomery, (18 Howard, 110, 115.) 

The same principles are maintained by the English au- 



/c^7 



27 



thorities. In Wildman^s International Law, {vol. '^^page 20,) 
it is asserted, that no exemption from the consequences of 
sending goods to the enemy will be gained by sending them 
through a neutral country ; that the interposition of a prior 
port makes no difference ; that all trade with the enemy is 
illegal ; that the circumstance that the goods are to go first to 
a neutral port, will not make the trade lawful ; and that it is 
not competent, during a war, for a British subject to send 
goods to a neutral port, with a view of sending them forward, 
on his own account, to an enemy's port, consigned by him to 
persons there, as in the ordinary course of commerce. Tliese 
principles were laid down by Sir William Scott, in The Jonge 
Pietei\ (4 Ch. Bob. 79.) The particular doctrine thus asserted 
had reference to the trading of British subjects with the enemy 
of Great Britain. But the reason of the doctrine makes it 
equally applicable to the case of a neutral attempting to send 
contraband goods to an enemy of the United States through 
the interposition of a prior neutral port. 

In the case of The Richmond, (5 Ch. Rob. 290,) an Ameri- 
can vessel was seized in the port of St. Helena, and proceeded 
against as a prize, on the ground that she was going, under a 
false destination, to the Isle of France, an enemy's port, with 
contraband articles concealed on board, and with a view of 
selling the vessel there, as a vessel well adapted for a shij) of 
war, and for the service of privateering. Sir William Scott, 
in his judgment in the case, says: "It is difficult not to con- 
sider the Isle of France as the possible port of destination of 
this vessel, according to the original intention. I say, as the 
possiUe port, at least, if not the principal and absolute port of 
destination of the original voyage. It cannot be denied that 
an American ship might go to St. Helena, and from thence to 
the Isle of France, or any other port of the enemy, provided 
the cargo was of an innocent nature. If, on the contrary, it 
was of a noxious character, the circumstance of merely touch- 
ing at an English port would not alter the nature of a voyage 
in itself illegal." He then comes to the conclusion, that the 
vessel had on board articles contraband of war — pitch and tar 



28 

— and holds that there are strong grounds to presume that the 
original destination of those articles was absolutely to the Isle 
of France. " But," he adds, " supposing that it was only of a 
shifting nature, and that it was merely eventual, that^ in law, 
would be quite sufficient, and that, at least, must be taken to 
have been the design of the parties." " If the intention was 
no more than this, ' I will go and sell pitch and tar at St. 
Helena, if I can ; and, if I cannot, I will go with them to the 
Isle of France, and sell them there,' that is an unlawful pur- 
pose, and every step taken in the prosecution of such a design 
is an unlawful act. The interposition of an English port 
would not make it innocent." " The pitch and tar were going 
with an original destination, either positive or eventual, to the 
Isle of France." 

In the case of The Maria, (5 Ch. Rob. 325,) Sir William 
Scott says : " It is an inherent and settled principle, that the 
mere touching at any port, without importing the cargo into 
the common stock of the country, will not alter the nature of 
the voyage, which continues the same in all respects, and must 
be considered as a voyage to the country to which the vessel 
is actually going, for the purpose of delivering her cargo at the 
ultimate port." The doctrine here laid down is equallj^ ap- 
plicable to the cargo, where it is carried to the ultimate port in a 
different vessel from the one in which it is carried to the inter- 
mediate port. 

In the case of The 'William, (5 Ch, Boh. 3i9,) on appeal be- 
fore the Lords Commissioners of Appeal in Prize Cases, Sir 
William Grant, in delivering the judgment of tlie Court, says : 
" ISTeitlier will it be contended, that the point from which the 
commencement of a voyage is to be reckoned, changes as often 
as the ship stops in the course of it; nor will it the more 
change because a party may choose arbitrarily, by the ship's 
papers or otherwise, to give the name of a distinct voyage to 
each stage of a ship's progress. The act of shifting the cargo 
from the ship to the shore, and from the shore back again into 
the ship, does not necessarily amount to the termination of one 
voyage and the commencement of another. It may be wholly 



/^r 



29 



imconnected with any purpose of importation into tlie place 
where it is done. Supposing the landing to be merely for the 
purjiose of airing or drying the goods, or of repairing the ship, 
would any man think of describing the voyage as beginning 
at the place where it happened to become necessary to go 
through such a process ? Again, let it be supposed that the 
j^arty has a motive for desiring to make the voyage appear to 
begin at some other place than that of the original lading, and 
that he therefore lands the cargo purely and solely for the 
purpose of enabling himself to affirm that it was at such other 
place that the goods were taken on board, would this con- 
trivance at all alter the truth of the fact ? Would not the real 
voyage still be from the place of the original shipment, not- 
withstanding tlie attempt to give it the appearance of having 
begun from a different place ? The truth may not always be 
discernible ; but, when it is discovered, it is according to the 
truth, and not according to the fiction, that we are to give to 
the transaction its character and denomination. If the voyage 
from the place of lading be not really ended, it matters not by 
what acts the party may have evinced his desire of making it 
appear to have been ended. That those acts have been 
attended with trouble and expense, cannot alter their quality 
or their eifect. The trouble and expense may weigh as cir- 
cumstances of evidence to show the purpose for which the acts 
were done ; but, if the evasive purpose be admitted or proved, 
we can never be bound to accept, as a substitute for the ob- 
servance of the law, the means, however operose, wdiich have 
been employed to cover a breach of it. Between the actual 
importation by which a voyage is really ended, and the colora- 
ble importation which is to give it the appearance of being 
ended, there must necessarily be a great resemblance." 

The cases of The Nancy (3 Ch. Rob. 122) and The United 
States, {Stewart^ s Adm. Eejp. 116,) were cases in which a voy- 
age, consisting of different parts, was held to be not two voy- 
ages, but one entire transaction, formed upon one original plan, 
conducted by the same persons, and under one set of instruc- 
tions ; and it was held that, in cases of contraband, especially 



30 

■when there is any thing of fraud or concealment, a return voy- 
age is to be deemed connected with an outward voyage. 

It is equally well settled, tliat the inception of the voyage 
completes the offence ; that from the moment that the vessel, 
with the contraband articles on board, quits her port on the 
hostile destination, she may be legally captured ; that it is not 
necessary to wait until the ship and goods are actually endeav- 
oring to enter the enemy's port ; and that, the voyage being 
illegal at its commencement, the penalty immediately attaches, 
and continues to the end of tlie voyage, at least so long as the 
illegality exists. {Ilalleck on International Law, chapter 24, 
section 7, 2^'^9^ ^^^^ 5 Wildman's International Law^ vol. 2, 
page 218; 1 Duer on Insurance^ G26, section 7.) The same 
doctrine is laid down by Sir William Scott, in The Imhia, 
(3 Ch. Rob. 16T,) and in "The Trende Sostre, (G Ch. Boh. 390, 
note.) In The Columbia.^ (1 Ch. Rob. 15-4,) Sir William Scott 
says, that the sailing, wath an intention of evading a blockade, 
is beginning to execute that intention, and is an overt act con- 
stituting the offence, and that from that moment the blockade 
is fraudulently invaded. The same view is maintahied by 
him in The Neptunus, (2 Ch. Rob. 110.) 

Such being the well-settled principles of public law in ref- 
erence to the carriage of contraband goods to the enemy, it 
only remains to be seen whether the Stephen Hart and her 
cargo are liable to condemnation according to those princi- 
ples. If she was, in fact, a neutral vessel, and if her cargo, 
although contraband of war, was being carried from an Eng- 
lish port to Cardenas, for the general purposes of trade and 
commerce at Cardenas, and for use or sale at Cardenas, with- 
out any actual destination of the cargo, prior to the time of 
the capture, to the use and aid of the enemy, then most cer- 
tainly both the vessel and her cargo were free from liability to 
capture. 

The Stephen Hart was laden with a cargo composed exclu- 
sively of arms, munitions of war and military equipments. It 
is urged, 'on the part of the claimants, that the vessel was a 
neutral carrier of the products of her own country, and of the 



31 

property of neutral merchants, from one neutral port to another. 
A strong appeal has been made to the Court not to permit the 
United States, as a belligerent, to stop the manufiictures and 
commerce of all other nations, or to dictate the mode in which 
their trade shall be carried on. It is said that a peaceful neu- 
tral may quicken bis industry and his commerce, and multiply 
liis gains, by the high prices caused by the demands of those 
belh'gerents who have exchanged the character of producers 
for that of consumers and destroyers; that British merchants 
may lawfully seek to supply the quickened demand at the 
new price, or become the carriers for those whose ships are 
exposed to capture ; that if, for any reason, they may not sell 
to the enemy of the United States directly, then they may sell 
to others who may sell to him ; that if they are unwilling to 
run the blockade, they may sell to those who are willing to 
take the risk ; that if they may not sell to Charleston, they 
may sell to Cardenas, without troubling themselves with the 
question, whether Cardenas will sell freely to those who may 
come from Charleston to buy ; and that the national wealth 
of the United States has been largely increased, during the 
warfare of other nations, by the employment of its citizens as 
neutral carriers in just such lawful commerce. But a neutral 
merchant ought not to forget, that the duties which the law 
of nations imposes on him flow from the same principle which 
ought to control the action of his Government as a neutral 
Government ; that where he supplies to the enemy of a bel- 
ligerent munitions or other articles contraband of war, or 
relieves, with provisions or otherwise, a blockaded port, he 
makes himself personally a party to a war, in which, as a neu- 
tral, he has no right to engage ; that, under such circumstances, 
his property is justly treated as the property of an enemy; 
and that the observance of those rules which the law of nations 
prescribes for his conduct, is a high moral duty. (I Duer on 
Insurance, 754, 755, section 24.) 

It is contended, on the part of the libellants, that the voyage 
of the /Stephen Hart was originated and prosecuted with the 
illicit purpose of conveying to the enemy articles contraband 



32 

of war, and of violating the blockade of a port of the enemy. 
It will conduce to a better understanding of the case to trace 
the previous history of the vessel, so far as we learn it from 
the evidence. She was built in the United States, and had 
been previously called the Tamauli])as. At the time the war 
broke out, she was owned in llTew-Orleans, which place she 
left in June, 1861, while that port was under blockade, al- 
though she was allowed to proceed on her voyage after her 
papers had been examined by a blockading vessel. Before 
she left New-Orleans, and while that port was a port of the en- 
emy, and was under blockade, she was sold there, about May, 
1861, to an English owner residing there. Chadwick testifies 
to this. He also says, that he understood that this English 
owner, a person named Allen, gave a power of attorney to 
Captain Ackley, the then master of the vessel, who was in the 
employ of Allen, and who took the vessel to Cuba and thence 
to England, authorizing him to sell her ; and that she was sold 
in England to the claimant, Harris. All this appears upon 
the first examination of Chadwick. But no bill of sale of the 
vessel is produced either to Allen or to Harris ; and there is 
no mention any where of the existence of any, not even in the 
test oath of Harris. ISTor is there any proof of tiie payment of 
any consideration on either sale, other than hearsay evidence 
and the test oath of Harris. All the knowledge that Chad- 
wick has on the subject of the sale to Harris is, {Ints. 14, 
37,) that Captain Ackley, the former master of the vessel, told 
him that he had sold the vessel to Harris for £2,000, and had 
got ills money, or the drafts for it. Captain Dyett says, {Int. 
14,) that tiie only way he knows that Harris is the owner, is 
by seeing his name in the register as owner. Neither Captain 
Dyett nor Chadwick {Int. 15) know any thing about any bill 
of sale of the vessel. Although, in the certificate of registry, 
which is dated at Liverpool, October loth, 18G1, Harris is 
named as the owner, yet it is expressly stated in the certificate 
that that paper is not a document of title. Captain Dyett 
says, {Int. 7,) that he was appointed to the command of the 
vessel on the 15th of November, 1861, ho tiiinks, which was 



/M// 



33 



four days before she was cleared at the custom-house in Lon- 
don ; that he was appointed to such command by Messrs. 
Isaac, Campbell & Co., of London ; and that Mr. Saul Isaac, 
of that firm, delivered the vessel to him. Ko charter-party, 
chartering the vessel to the owners of the cargo, was found on 
board. Captain Dyett says, {Int. 19,) that there was no charter- 
party for the voyage, and Chadwick says, {Int. 19,) that he 
does not know of any charter-party. The only evidence of 
any payment by Harris for the vessel is his test oath to his 
claim. But, in that test oath he does not state to whom he 
paid the purchase money, nor does he stale that any bill of 
sale of the vessel was delivered to him, nor is the power of 
attorney from Allen, under which the sale is alleged to have 
been made by Captain Ackley, produced, or its absence ac- 
counted for. 

In the case of The Christine, (I Spi7ih, 82,) during the 
recent war between England and Russia, where a vessel was 
claimed by one Schwartz, her master, as a citizen of Lnbeck, 
and a neutral owner, he alleged that he had purchased her, 
just before the commencement of the war, from her Russian 
owners. Dr. Lushington says, in delivering the judgment of 
the Court, after noting the fact that the master had been mas- 
ter of the vessel, under Russian colors, for eight months before 
the time of the alleged purchase: "'This contract is a very 
suspicious one, not only on the ground that it was immediately 
antecedent to the war, but also on the ground that it was a 
purchase, by tiie master." " A party coming forward under 
such circumstances, and claiming the ship in a neutral charac- 
ter, is bound not only to produce, but to have on board, suffi- 
cient documents to satisfy the Court that he possesses a ho7ia 
fide title. I do not say that the Court would l)ind him down 
to the production, in the first instance, of all the papers which 
it might ultimately deem necessary to induce it to pronounce 
for a restitution ; but I do say, that it ought to be a contract 
of that nature in itself, supported by such documents found on 
board, as would give the Court good reason to suppose that, if 
the opportunity of producing further proof were allowed, it 

3 



34 

would give bim a title to restitution ; otherwise, further proof 
is a inockery." " There must be proof of payment in all cases 
where any suspicion arises as to the validity of the contract 
at the time of sale. It is quite vain to say, ' mine is a hona 
fide valid contract.' The money must have been paid before 
the master assumes the command, or ventures out on the high 
seas during war; otherwise, the ship would be liable to be con- 
demned." "The title on which the master claims — the bill 
of sale — is not here. ISTow, this may be a hona fide claim. I 
do not decide whether it is or not, but I decide that it is not 
legal, according to the usage and practice of the Court, and 
the laws which regulate the Court in matters of prize. If this 
important paper, which is the sole title-deed, is not produced, 
what satisfaction can the Court have? The title-deed to the 
ship should be on board of the ship. If further proof were 
allowed in this particular case, could the Court feel satisfied 
that it would receive a genuine document? The case is teem- 
ing with suspicion throughout. Is there any one document 
whatever produced, that can satisfy the Court that the transac- 
tion was hona fide., independently of all the circumstances I 
have mentioned? Certainly there is one document." That 
document was a certificate, showing that a ship's clearer 
appeared at Lubeck, and swore that he was lawfully au- 
thorized by the claimant, by power of attorney, and that the 
vessel commanded by the claimantsolely and hona fide belonged 
to him. Dr. Lushington proceeds: " So tliat this gentleman 
makes oath, by virtue of a power of attorney from Captain 
Schwartz, which power of attorney is not produced. I have 
simply this document, which in no degree corroborates the 
claim." lie tiien adds, that in a case where the question in 
dispute is the hona fides of the sale, it has always been held 
that proof of actual payment was essential, and decides that 
he cannot allow further proof in the case, and that the vessel 
must be condemned. 

In the case of The Sisters, (5 Ch. Boh. 138,) Sir AVilliam 
Scott says : " A bill of sale is the proper title to wiiich the 
maritime Courts of all countries w^ould look. It is the univer- 



/4^/ 



35 



Bal instrument of transfer of ships, in the usage of all maritime 
countries, and in no degree a peculiar title-deed or convey- 
ance, known only to the law of England. It is what the mari- 
time law expects, and what the Court of Admiralty would, in 
its ordinary practice, always require." 

As the StejpKen Hart was built in the United States, she 
must, on the evidence, be held to have belonged, at the com- 
mencement of the war, to a citizen of New-Orleans, and her 
transfer, after the blockade was establisiied, to a British sub- 
ject, a resident of New-Orleans, not being in any manner 
proved by competent evidence, she was still, in judgment of 
law, enemy's property, and liable to capture as such. But, in 
addition to this, even if it were shown that she had, in fact, 
been legally transferred to Allen, a British subject, residing in 
New-Orleans, yet, as the domicil of Allen was in the country 
of the enemy at the time of tiie transfer, his status follows the 
character of that country in war, and the law of nations pro- 
nounces him an enemy. {The Pizarro^ 3 Wheaton^ 227 ; Opin- 
ion of the Supreme Court U. S. in the Prise Cases^ hy Grier, «/!, 
December Term^ 1862, 11 Avfi. Law Reg., 334.) Moreover, the 
transfer by Allen to Harris, even if that were sufficiently 
proved, having been made under a power of attorney, must, 
in judgment of law, be regarded as having been made at 
New-Orleans, by Allen, a resident of New-Orleans, and as of 
the time when the power of attorney was given, and thus, as 
having been made in a blockaded port of the enemy, in time 
of war, by a British resident there, and as leaving the vessel 
equally liable to capture as enemy's property. {The General 
Hamilton, 6 Ch. Rob. 61 ; The Two Brothers, 1 Ch. Rob. 131.) 

There is, therefore, abundant ground for condemning the 
vessel, irrespective of any of the reasons connected with the 
traffic in which she was engaged at the time of her capture. 

The cargo of the vessel, composed of arms, munitions of war 
and military equipments, is claimed as the sole property of S. 
Isaac, Campbell & Co., of London, who appear to be dealers 
in military goods. It is alleged by the claimants of the vessel 
and cargo, that the real destination of the vessel and cargo 



36 

was Cardenas, iu the Island of Cuba. But, it is to be noted, 
that the shipping articles specify the voyage as a voyage from 
London to Cuha^ (Cuba generall}', not Cardenas or any other 
port in Cuba,) and Sierra Leone, "and any port — ports on 
coast of Africa, ^ North ~ South America ^~ West Indies, 
and back to a final port of discharge in the United Kingdom/' 
All the other official papers found on board of the vessel, such 
as the receipt for the Dover harbor duties, the certificate of 
the shipping-master for the clearance, the receipt for light 
duties at London, the receipt for harbor duties at Ramsgate, 
the certificate from the searcher's office of the London cus- 
tom-house, and the victualling bill, speak of the voyage as 
one from London to Cuba. The telegraphic despatch of the 
23d of ^November, 1861, from S. Isaac, Campbell & Co., to 
Lloyd's agent at Deal, speaks of the schooner as bound for 
Cardenas. The title-page of the ordinary log-book speaks of 
the voyage as one from London to Cardenas, Cuba. The label 
on the outside of that log-book has the blank for the place at 
which the voyage commenced filled up with the words, " Lon- 
don, England," but the blank for the place of destination is not 
filled up at all. The blanks at the tops of the pages of that log- 
book are only filled up on one page, although sixty-two pages of 
that log-book are occupied with entries of the progress of the 
voyage from the 19th of November, 1861, to and including 
noon of the 2Tth of January, 1862. The page referred to has, 
at the top, the voyage entered, as " from London towards 
CwJa." On the first page of that log-book, under date of 
November 19th, 1861, there is an entry that the pilot " took 
charge of the schooner Stephen Hart on a voyage to Ciiba.''^ 
Tiie title-page of the official log-book speaks of the voyage 
as being one to " Cuba and Sierra Leone." None of the let- 
ters found on board are addressed to any person at Cardenas. 
But there was found on board a letter from Saul Isaac to Mr. 
Crawford, the British ConsulGeneral at Havana, asking his 
"assistance and advice for Captain Dyett, of the schooner 
Stephen llart^ should he need it during his stay at Ilavan- 
nah." 

The letter of instructions to Captain Dyetl from S. Isaac, 



/^i^ 



37 



Campbell & Co., produced by Captain Djett on his exami- 
nation, directs him to proceed "to Cardenas, Cuba," and 
to report, on his arrival there, " to Charles J. Helm, Esq're, 
to whom jou will consign yourself and vessel, and from whom 
you will receive all orders for your future actions with refer- 
ence to the schooner and cargo, and you will be pleased to 
implicitly obey all orders given by Charles J. Helm, Esq're. 
* * * * Mr. Helm may require the schooner for use, 
at Havannah. Should he do so, you will, at once, make the 
best arrangements for the immediate return to England of 
yourself and crew. Should, however, any one wish to remain 
in the employ of Mr. Helm, we have no objection to his do- 
ing so. In case Mr. Helm has no use for the vessel, after dis- 
charging the cargo, you will receive full instructions from 
Messrs. Isaac, Campbell & Co., by mail leaving this on the 
2d proximo, for proceeding to the West Coast of Africa." 
The letter then directs Captain Dyett to deliver, without 
delay, on his arrival, the letters which he has for Mr. 
Helm and Mr. Crawford, and, also, immediately on his arri- 
val at Cardenas, to telegraph " to Cahuzac Brothers, Ha- 
vannah, who will, on receipt of message, communicate with 
you." The letter to Mr. Helm, thus referred to, was also 
produced by Captain Dyett on his examination, and is from 
Saul Isaac, and is addressed " Charles J. Helm, Esq're, care 
of J. Crawford, Esq're, Havannah." It says: "The bearer 
of this is Captain Dyett, of the schooner Stephen Hart, for 
whom I ask the favor of your good offices. Should he require 
assistance or advice during his stay at Havannah, he will 
hand you his instructions from my house to read, and I feel 
assured that you will in all matters find him a good man." 
It is very manifest, from these documents, that Mr. Helm, 
Mr. Crawford, and Cahuzac Brothers, the only parties named 
as having any concern in Cuba with the vessel or her cargo, 
were all of them to be found at Havana, and none of them at 
Cardenas, and that no person in Cardenas was consignee 
either of the vessel or the cargo; that it was contemplated 
that the vessel should go to Havana, if Mr. Helm required 
it, and be given up for use to Mr. Helm, at Havana, if he 



38 

required it; that Captain Dyett was to obey the orders of 
Helm in all his actions with reference to the vessel and her 
cargo ; that Captain Djett and his crew were authorized to 
remain in the employ of Mr. Helm, if any of them desired 
to do so; and that Mr. Helm was to have the control of the 
discharging of the cai'go of the vessel, and the right to 
use the vessel after the cargo was discharged. It is also to 
be noted, that these instructions to Captain Dyett were not 
from Harris, the alleged owner of the vessel, but were from 
S. Isaac, Campbell & Co., who claim to be the owners of the 
whole of her cargo. No instructions whatever from Harris 
to Captain Dyett were found on board, nor is it pretended 
that he had any from Harris. Harris appears to have given 
up the entire control of the" vessel and of her movements to S. 
Isaac, Campbell & Co. ; and, for these reasons, independently 
of all other considerations, the owner of the vessel must be 
held to have involved her in any illegality of which S. Isaac, 
Campbell & Co. or Captain Dyett have been guilty in respect 
to the cargo of the vessel, especially in view of the facts which 
Captain Dyett states, that he was put in command of the ves- 
sel by that firm, and tiiat there was no charter-party for the 
voyage. {Jackson v. Montgomery^ 18 Howard, 110, 119.) 

The conclusion is irresistible, from the contents of tiie three 
letters referred to, that there was no intention whatever of 
discharging the cargo of the vessel at Cardenas ; and that, if 
discharged at all in Cuba, it was to be discharged at Havana. 
As no manifest, bills of lading or invoices, or any other papers, 
(except the letter of instructions to Captain Dyett,) giving 
any information as to the character of the cargo, or its owners, 
or its consignees, were found on board of the vessel, the con- 
viction is forced on the mind that the cargo had a single 
ownership and a single destination ; that that ownership was 
one represented by Mr. Helm as its agent ; and that that des- 
tination was to the place where his principals resided, and 
where they would derive the most benefit from the cargo. 

Who was Charles J. Helm ? Captain Dyett {Int. IC) calls 
liim " Major Helm," and says that [he resides in Havana. 



/^^ 



39 



Chadwick, on his second examination, says {Int. 11) that 
Helm was the agent for the " Confederate States," in Cuba. 
This being so, it may very well be inferred that this cargo of 
arras and munitions of war was destined to be carried into the 
enemy's country, as we find the vessel and her cargo placed, 
by the orders of S. Isaac, Campbell & Co., within the entire 
control and subject to the orders of Helm. But, independently 
of this, the evidence is irresistible, that the cargo was destined 
for the enemy's country. 

The test oaths, both of Harris and of Samuel Isaac, when 
examined carefully, fall far short of a frank and clear state- 
ment of an innocent destination for the vessel and cargo. The 
test oath of Harris says, that the true and only destination of 
the vessel, with the cargo^ was Cardenas, " where the same was 
to be delivered." This oath would be satisfied by a delivery of 
the cargo in bulk at Cardenas to Helm, and its transhipment 
there to another vessel, to be carried to a port of the enemy, 
in pursuance of such an original destination. It does not 
state that the destination of the cargo was not to a port of the 
enemy. And it states, in very suspicious language, that it 
was not intended that the vessel should enter, or attempt to 
enter, any port of the United States, but it does not state that 
it was not intended that the vessel or her cargo should enter, 
or attempt to enter, any port of the enemy of the United 
States, or any port blockaded by the naval forces of the United 
States. In all these particulars, the test oath of Samuel Isaac 
to the claim for the cargo holds the same suspicious language, 
and is wanting in the same averments. The Court searches 
in vain through these test oaths to find those full and honest 
allegations which should characterize the test oath to a claim 
made by a neutral really engaged in lawful and innocent com- 
merce. 

I shall now review the evidence in the case, in order to see 
to what conclusion it leads. Captain Dyett says, (/n^. 4,) that 
lie does not remember seeing any '' Southern flag" on board of 
his vessel, although he says, that if the " Southern flag" were put 
before him, he should not know it. He admits, however, that 



40 

besides the English colors, under which the vessel sailed, and 
the American flag, " that is, the stars and stripes," there were 
other flags in the vessel's bag. Chadwick says, {Int. 4,) that 
they had the "Confederate" flag on board, and cut up the 
American flag to make a burgee of it. A " burgee" is defined 
by lexicographers to be "a distinguishing flag or pennant." 
Leisk says, {Int. 4,) that the vessel had an American flag on 
board, and another flag that looked similar to the American 
flag. JSTellman says, {Int. 4,) that she had the American en- 
sign, which was cut up on the voyage to make a burgee of, 
and also " a flag of the Confederate States of America ;" that 
he saw that flag a few days before the capture, in the sail 
cabin, in a bag with the burgee ; and that, on the day of the 
capture, he found the burgee on the floor in the main cabin, 
and made thorough search for " the Confederate flag," but 
could not find it. Allan says, {Int. 4,) that they had the 
American colors on board, and another flag with stars and 
stripes, " but not as many stars as the old American flag;" 
and that he does not know whether that was the " Confederate 
flag" or not, as he never saw one to know it, unless that was 
one. Chadwick, on his re-examination, {Int. 39,) says, that 
after the capture of the vessel, and while the captors were in 
charge, he took this " Confederate flag" from where it was 
hid in his clothes bag, and threw it overboard ; and that this flag 
was intended to be displayed in connection with a peculiar 
one, called the "Isle of Man's flag," or signal, "which was 
adopted by the Southern States as a signal for a friendly ves- 
sel wishing to enter, and which should be protected, as far as 
possible, by them." This signal flag was probably the burgee 
of which the witnesses speak. 

Captain Dyett says, {Int. 3,) that the schooner was captured 
about eighty-two miles from Point de Yeacos, in Cuba. 
Chadwick says, {Int. 3,) that the capture took place between 
Cuba and Key "West, near the coast of Florida. Nellman 
and Allan say, {Int. 3,) that the capture took place about 
thirty miles from Key West. Captain Dyett says, {Int. 
10,) that the capture took place about twenty -five miles from 



/¥^ 



41 



Key West, and {Int. 36) about eightj-two miles from Car- 
denas. 

. Captain Dyett says, {Jni. 11,) that the vessel was bound for 
Cardenas ; that the contents of -her cargo were unknown 
to him, except that he saw some cases marked " long En- 
field," which he supposed contained " long Enfield guns," 
and he thinks he saw a few bales, marked " socks;" and that 
at Erith, below London, on the Thames, some packages were 
taken in stamped " ball cartridges ;" but, he says, " she had 
no goods on board which were contraband of war, or other- 
wise prohibited by law." He also says, {Int., 39,) that he can- 
not state any thing further in regard to the real and true 
property and destination of the vessel and cargo, except that, 
after he had discharged his cargo, he was to proceed to Sierra 
Leone, as stated in his letter of instructions. Chadwick, on 
his first examination, {Int. 11,) says that they were bound to 
Cardenas ; that the cargo consisted of powder and muni- 
tions of war ; that {Int. 39) he understood from the Cap- 
tain and the shipping articles that they were bound to Car- 
denas, and from there to Sierra Leone ; and that he knows 
nothing beyond that. Leisk says, {Int. 11,) that the vessel was 
bound to Cardenas and Sierra Leone ; that he knew that 
her cargo, consisting of arms, powder and soldiers' equip- 
ments, was contraband of war; and {Int. 39) that he knows 
nothing about the destination of the vessel and cargo, except 
that they were bound to Cardenas. JSTellman says, {Int. 11,) 
that the vessel was bound to Cuba, Sierra Leone or the West 
Indies, or some port in North or South America; and that he 
does not know to which of those several ports or places they 
were bound first. In this particular, he confirms the very am- 
biguous and alternative language in the shipping articles. 
He also says, {Int. 11,) that the cargo consisted of Enfield 
rifles, powder, cartridges, shot, shells, soldiers' accoutrements, 
such as knapsacks, belts and pouches, and some heavy boxes, 
which he thinks contained small cannon ; and that the lading 
consisted entirely of warlike stores and articles. He thus 
manifests a knowledge of the cargo, which is in striking con- 



42 

trast witli Captain Djett's ignorance. Nellman says, {Int. 11,) 
that he thinks that these goods are contraband of war. Cap- 
tain Djett, however, {Int. 11,) saj's, that Enfield rifles and 
ball cartridges are not contraband of war. Allan says, {Int. 
11,) that the vessel was bound to Cuba; and that the captain 
said he was going to Cardenas, and from there to the coast of 
Africa. As to the cargo, Allan says, {Int. 11,) that he had 
seen boxes marked " long Enfields," which he took to be 
guns, and had heard there was powder, and had seen bales of 
blankets and other military equipments, and believes that she 
had a general cargo of arms and munitions of war. 

Captain Dyett says, {Int. 14,) that he does not know who 
owns the cargo, but his impression is that it belongs to Isaac, 
Campbell & Co.; that {Int. 16) he does not know who were 
the laders of the cargo, or for whose risk and account the goods 
were, or what interest Major Helm had in them ; and that he 
does not know to whom they would belong, if restored and 
delivered at their destined port. Chadwick says, {Int. 14,) that 
he heard in London that Isaac, Campbell & Co. owned the 
cargo. Kellman says, {Int. 14,) that he believes the cargo is 
owned " in the Confederate States of America ;" that he heard 
Chadwick say so ; that he never heard any thing further con- 
cerning the cargo and its owners, except that Mr. Chadwick 
told him that the cargo was going to some place in " the Con- 
federate States," and professed to know all about it. He also 
says, {Int. 16,) that Mr. Hughes, who he believes is an agent 
for "the Confederate States," put the cargo on board, and was 
the lader thereof, and seemed to be the principal man, and had 
the most to say about the vessel and cargo ; that the goods 
were to be delivered in the Southern States, at some port 
therein, and he tiiinks for the account or benefit of some per- 
son in those States ; and that he believes, from what he heard 
on board the vessel, that the cargo was destined for some port 
in the Southern States,either to be carried there in that vessel, 
or to be transhipped and put in another vessel for the same 
purpose. He also says, {Int. 24,) that he thinks that the vessel 
was in reality bound for Cuba, and that, after arriving there. 



/^s 



43 



she would have received instructions as to what particular 
port or place she should go to in the Southern States, or as to 
whether the cargo should be transhipped and put on board 
another vessel ; and that Chadvvick told liim that a steamer 
would receive the cargo at Cuba very probably, and would 
carry it thence to some Southern port. 

Captain Dyett says, {Int. 17,) that he signed four bills of lad- 
ing for the cargo, which were prepared by the broker and laid 
before him to sign ; that he signed them without reading them, 
and does not know their contents ; and that he had no bill 
of lading on board when he sailed, or at any time before his 
capture. He also says, {Int. 31,) that he signed a manifest 
before the Collector of London, and left it at the office of the 
brokers, Speyer & Haywood, in London, and has not seen it 
since ; that the manifest was in the usual form, and made from 
the bills of lading; and {Int. 17) that the bills of lading and 
manifest were to be forwarded to him at Cardenas. He also 
says, (//iz5. 18,) that there were no invoices on board of the vessel. 

Captain Dyett, on the capture of the vessel, did not give up 
to the prize-master the letter of instructions from S. Isaac, 
Campbell & Co. to him, or the letter from Saul Isaac to Charles 
J. Helm, of November 19th, 1861. He only produced them 
on his examination in preparatorno, after his arrival at New- 
York, in answer to the searching inquiries of the standing 
interrogatories. He says, {Int. 20,) that he did not give up 
those letters to the prize-master, because he did not know that 
he was bound to give them up. Yet he says, {Int. 18,) that he 
gave to the prize-master his ship's log-book, his official log- 
book, and his desk, with all the papers therein, being his pri- 
vate papers and in no way relating to the vessel ; and, among 
the papers which he so gave up, is found the comparatively 
unimportant letter from Saul Isaac to the British Consul at 
Havana, and the telegraphic despatches and official papers of 
the vessel, which were calculated, on their face, to show a fair 
and honest voyage from London to Cuba. The two letters 
which he did withhold, namely, the instructions to himself 
and the letter to Helm, were the only documents on board 



44 

which in any way connect Mr. Helm with this vessel and her 
cargo. This withholding or temporary suppression of those 
two letters, whose character and contents I have already com- 
mented upon, is one of those circumstances which is always 
regarded with suspicion, particularly where the suppression is 
made by a master. I shall have occasion to refer to this point 
hereafter, in connection with the attempted suppression of 
important papers by Chad wick. That the suppression of these 
letters by Captain Dyett was premeditated, is shown by the 
testimony of Nellman, who says, {Int. 18,) that Captain Dyett 
had a letter with him directed to some one, and that he heard 
him and Cbadwick talk about it an hour or so before the cap- 
ture, just when the capturing vessel was firing her first shot. 

Chadwick says, {Int. 18,) that he had some private letters 
from his wife and friends, which he gave to Leisk, the cook, to 
take care of, and that Leisk gave them up to some of the cap- 
turing officers. Leisk says, {Int. 32,) that he had some papers 
belonging to Chadwick which he, Leisk, put into a tea-pot, 
where they were found by the searching officer; ;uid that they 
were put there by the orders of Chadwick, to keep them out of 
sight. Nellman says, {l7it. 20,) that Chadwick, a few minutes 
before the capture, gave some papers to Leisk, with directions 
to put them into a tea-pot in the galley, for the purpose of con- 
cealing them, but that they were found by the United States 
officers. Allan says, {Inf. 12,) that he saw a bunch of papers 
taken out of the tea-pot by the boarding officer, and that, when 
they were found, the officer asked Leisk what they were, and 
Leisk said he thought it was tea. 

On his re-examination {Int. 32) Leisk says, that some papers 
were given to him by Captain Dyett on the evening of the 
day they were captured, which Captain Dyett had put at the 
foot of his berth. Leisk says : " lie told me, if he sent for these 
papers, I should know wiiere to find them. He then went on 
board the Supply. When he returned, I asked him if he 
wanted those papers. He said he had already got them. This 
conversation was between us, there being no other person 
within hearing. We were in his state-room at the time, with 



/^^ 



45 



the door closed." We have no explanation from any witness 
as to what those papers were. As to the papers which Leisk 
received from Chadwick and put into the tea-pot, where they 
were found by the boarding officer, Leisk says, on his re- 
examination : " "When the first officer handed me those papers, 
he seemed anxious and uneasy, and, when he returned to the 
schooner to get his clothes, the first thing he said to me was, 
' Have you got those papers V I told him they were found by 
the officer. He then said, ' Why in hell did you not destroy 
them V And likewise, ' By God, I am done V " 

Three of the papers which were concealed in the tea-pot, 
and which Chadwick speaks of as private letters, are letters to 
Chadwick containing some very important matter. One of 
them is dated at Bristol, England, October 29th, 1861, and is 
addressed to Chadwick by a person who signs himself " R. 
H. Leonard, ship Alexander, Confederate States." Leonard 
expresses his pleasure that he is able to furnish Chadwick 
with " the book required," without price. He refers to it as 
a book which Chadwick had written for, says that it belongs 
to him, Leonard, and that, if it were worth ^50, he would wil- 
lingly give it to an enterprise of Chadwick's, and hopes it may 
be of valuable service to him. This book is the copy of the 
United States Coast Survey, that was found on board of the ves- 
sel, containing charts, as has been seen, for entering very many 
of the blockaded ports of the enemy. In his testimony, given 
on his re-examination, Chadwick refers particularly to this 
book of charts as one which he recommended to his employers 
to purchase, and which they told him to purchase at any price. 
He says that he obtained one, which was presented to him by 
" R. H. Leonard, the mate of the ship Alexander, then lying 
in Bristol." Those employers, Chadwick states, in his deposi- 
tion on re-examination, to have been Mr. Hughes, " the Com- 
mercial Confederate Agent for purchasing arms and ammuni- 
tion for, and shipping the same to, the Confederate States," 
"William L.Yancey, of the United States," a South Carolina 
captain, named Connor, and Mr. Saul Isaac. 

In the same letter, Leonard says : " Captain Johnson will 



46 

mark out the chart; also the route, with some information; 
also write a letter, which he will wish you to deliver or forward. 
Mrs. Bain will also have a letter for you to take, and forward 
to Yirginia, if you arrive safe. I bope you may be successful. 
If so, report the old Alexander laying up at Bristol, with the 
palmetto tree constantly flying, and that her captain and offi- 
cers are ready to aid the South in any enterprise. Tommy, I 
will not ask you to disclose the secret of your voyage. Be 
whatever it may, I believe it is true to the South. My heart 
and well wishes are with you, hoping you may be successful, 
and I may hear of the consequences. If that book prove ser- 
viceable to you,^it will aftbrd me more pleasure than its weight 
in gold in return. * -3^ * * I shall send the book by ex- 
press this evening. I wish you to write me two or three mails 
before you put to sea, as Mrs. Bain will have some other let- 
ters to send. If you should fail, destroy." 

Ciiadwick, on his re-examination, states that he received a 
letter from Captain Johnson, of the ship Naomi, of Charleston, 
S. C, giving him a description of the entrance to Charleston, 
and also received from him letters for his wife, and for other 
persons residing in the "Confederate States." In confirma- 
tion of this, we find that another of the three letters, being one 
dated at Bristol, England, October 29tli, 1861, and signed 
" John Johnson, ship Naomi," and addressed to " Mr. Benja- 
min H. Ciiadwick, schooner Stephen Hart, Surrey Canal, Lon- 
don," says : " Mr. Leonard, chief officer of the ship Alexander, 
and I had some private conversation this morning concerning 
some things^ which I need not now repeat." Johnson then 
proceeds to give specific directions as to the mode of entering 
the harbor of Charleston, and adds : " The chart of Charleston 
harbor, in the book called the IT, S. Coast Survey, will be 
your best guide." He also says : " Enclosed is a letter, and I 
beg that you will, in case you succeed in safely reaching any 
Southern port, forward the same to its destination. At the 
same time, do not let its encumbrance in any way interfere 
with your enterprise. Destroy it, if need be ; but, if it could 
be managed to forward it safe to my wife, I should feel very 



47 

grate'ful towards you for your kindness. I Lope and trust 
that you will succeed in your undertaking. Observe secrecy, 
by all means, and I can assure you that no information as 
regards the Stephen Hart's whereabouts or movements, shall 
be gained from me by any one here or elsewhere. * * ^ 
May the God of Justice guide you in safety to your port of 
destination is the fervent wish of one who loves the South, its 
institutions and its people." 

The remaining one of the three letters is from Leonard, and 
is addressed "To Mr. B. H. Chadwick, alias Tommy, 1st 
officer, Stephen Hart," and is written at Bristol, England, but 
without date. It says, among other things, " Give me the par- 
ticulars of your voyage, what your cargo consists of, and if you 
have got any guns on board." 

^ Tiie suppression by Captain Dyett, until his examination 
in preparatorio, of the letter of instructions to him from S. 
Isaac, Campbell & Co., and of the letter from Saul Isaac to 
Helm, and the attempt by Chadwick to conceal the letters 
from Leonard and Captain Johnson, are circumstances of great 
importance, as tending to show the illicit and fraudulent char- 
acter of the entire transaction connected with this vessel and 
her cargo, and that Captain Dyett and Chadwick were con- 
cerned in carrying out the unlawful purpose, and endeavored 
to promote that end by attempting to conceal the evidence 
which they had in their possession. The spoliation of papers 
is a strong circumstance of suspicion. {1 Kenfs Comm. 
157.) It is not, however, either in England or in the United 
States, held to furnish, of itself, sufficient ground for condem- 
nation, but is a circumstance open to explanation. {The 
Hunter, 1 Bodson, 480; The Pisarro, 2 Wheaton, 221 .) 
But, if the explanation'be not prompt and frank, or be weak or 
futile, if the cause labors under heavy suspicions, or if there be 
a vehement presumption of bad faith or gross prevarication, it 
is ground for the denial of further proof, and the condemna- 
tion ensues from defects in the evidence, which the party is 
not permitted to supply. (I Kent's Comm., 158 / The Pi- 
sarro, 2 Wheaton, 227; Bernardi v. Motteaux, Doug., 554, 



48 

559, 560.) In the cnse of The Two Brothers, (1 Ch. Boh 
131,) the master had burned some letters, before capture, 
whicli he said were only private letters. Sir William Scott 
says, in commenting upon that circumstance; " No rule can 
be better known than that neutral masters are not at liberty 
to destroy papers, or, if they do, that they will not be permitted 
to explain away such suppression by saying, ' they were only 
private letters.' In all cases, it must be considered as a proof 
oi mala fides ; and, where that appears, it is a universal rule, 
to presume the worst against those who are convicted of it. It 
will always be supposed that such letters relate to the ship or 
cargo, and that it was of material consequence to some inter- 
ests that they should be destroyed." In the case of The Hi' 
sing Sun, (2 Ch. Bob. 104,) Sir William Scott says : " Spoliation 
is not alone, in our Courts of Admiralty, a cause of condem- 
nation ; but, if other circumstances occur to raise suspicion, it is 
not too much to say, of a spoliation of papers, that the person 
guilty of that act shall not have the aid of the Court, or bo per- 
mitted to give farther proof, if further proof is necessary." 

The withholding by the master of the two letters, in the 
present case, until his examination, while he gave up to the 
captors the letter to the British consul at Havana, and, as he 
says, all his own private papers, would have been a complete 
suppression of the two letters in question, if their production 
had not been compelled by the stringent character of the stand- 
ing interrogatories. In the case of The Concordia^ (1 Ch. Bob. 
119,) the master withheld his instructions until the time of his 
examination. Sir William Scott says: "This was certainly 
incorrect. It is a master's duty to produce all his papers, and, 
least of all, to withhold his instructions, which are very im- 
portant papers to be communicated for the interest of botli 
parties." So, also, the concealment by Chadwick of the let- 
ters to him, which showed the true character of the enterprise 
of \}^^ Stejphen Hart, would have been as effectually a de- 
struction of those papers, for the purposes of this case, if they 
had not been found upon the search, as if they had been 
actually thrown into the sea and lost. ' And the suspicion 



/^/ 



49 



which the law attaches to a spoliation of papers arises with 
equal force from an attempted spoliation. 

That Captain Dyett and all of his crew knew of the block- 
ade of the enemy's ports, is abundantly established by the 
evidence. I^ellman says, {Int. 21,) that "all on board knew 
that the Southern States, including Florida, were in a state 
of war with the United States, and the Southern ports block- 
aded by the United States Navy." " It was a matter of con- 
versation on board during tlie voyage." Captain Dyett says, 
{Int. 21 :) ''I knew of the rebellion in the Southern States, and 
that some of the Southern ports were blockaded." 

Captain Dyett says, {Lit. 36,) that the vessel was steering for 
Cardenas when she was captured, and that her course was not 
altered upon the appearance of the capturing vessel. Chad- 
wick, on his first examination, {Int. 36,) says the same thing. 
!N"elIman says, {Int. 36,) that when they first saw the capturing 
vessel, about six o'clock in the morning, the Stephen Hart was 
standing towards Key West, and continued on that course until 
about twelve o'clock, when she tacked and steered towards 
Havana, and was steering towards Havana when captured ; 
that their course, at all times when wind and weather per- 
mitted, was towards Cardenas, except in the instance men- 
tioned, and except when obliged to pursue another course on 
account of head winds ; and that the latter was the reason why 
the vessel was steering towards Havana at the time of her 
capture. Nellman says that he had the watch when the cap- 
turing vessel was first seen ; and that Chadwick had the watch 
from eight A. M. until noon, and he, Nellman, again, from 
noon to four o'clock. JSTellman {Int. 19) and Allan {Int. 3) say, 
that the capture was made about two o'clock, P. M. Although 
Captain Dyett, and Chadwick on his first examination, say, 
{Int. 3G,) that the course of the vessel was, at all times when 
wind and weather would permit, towards Cardenas, yet it is 
apparent that she set out from England with the intention of 
running the blockade, if she could, and she was captured in a 
position consistent with that intention. 
The evidence which has been reviewed establishes, beyond 

4 



50 

reasonable doubt, that the cargo of the Stephen Hart was in- 
tended, on its departure from England, to be carried into the 
enemy's country, for the use of the enemy, by a violation of the 
blockade of some one of the enemy's ports, either in the Stephen 
Hart, or in another vessel into which the cargo was to be 
transhipped, for the purpose of being transported by sea to the 
enemy's country. This is clearly established without the aid 
of the testimony given by Chadwick on his re-examination. 
Some portions of that testimony have been incidentally al- 
luded to. The other main facts detailed by Chadwick on his 
re-examination, are entirely consistent with all the rest of the 
evidence in the case, and are corroborated by that evidence. 
Some of the points of corroboration have been already alluded 
to, and I shall refer to others. 

Chadwick says, on his re-examination, {Int. 11 :) "The ves- 
sel was bound to Cardenas, in Cuba, but the destination of 
her cargo was certainly to one of the Confederate States, 
and the vessel was, in like manner, so destined, if Charles J. 
Helm, the Confederate agent at Cuba, should so direct. 
That voyage began in London, and was to have ended at 
Cardenas, or any port in the Confederate States which the 
aforesaid Confederate agent should direct." He also says, 
{Int. 36 :) " The vessel was steering for Cardenas, but that 
port was to be used only as an intermediate port of call, and 
of transhipment of the cargo, if necessary, or ordered by 
Charles J. Helm." He also says, {Int. 39,) that after he 
had gone in the vessel, then called the Taniaulipas^ivoiwl^QV}- 
Orleans, by the way of Havana and Matanzas, to Falmouth 
and Bristol, England, and thence in the same vessel to Lon- 
don, he was requested to go to No. 71 Jermyn street, Lon- 
don. He adds: "I accordingly went, and was there intro- 
duced to Mr. Isaacs, the head of the firm of Isaacs, Campbell 
& Co., and also to a Mr. Hughes, whose first name I did not 
learn, and who told me he was the Commercial Confederate 
agent for purchasing arms and ammunition for, and shipping 
the same to, the Confederate States. He asked me how I 
would like to run the blockade of the Southern States in the 



/^^ 



51 



Stephen Hart. I answered, ' that I would sooner go in a 
steamer.' There was no definite arrangement made at that 
time. I was again sent for, and went to the same place, 
where I met Mr. Isaacs, the same Captain Hughes, and Wil- 
liam L. Yancey of the United States, There was also a South 
Carolina captain there. I was taken by Captain Hughes and 
this South Carolina captain, (whose name was Connor,) into 
another room, and there fully examined in regard to ray 
knowledge of the Southern coast of the United States. I was 
then employed by Captain Hughes as a pilot agent, and to 
leave the Stephen Hart and go on board of a steamer which 
he had chartered, and which was then taking in a cargo of 
arms and ammunition for the Confederate States. I was to 
leave the Stephen Hart^ go ashore and take lodgings, and ob- 
serve secrecy until I was called, which I did. About a week 
afterwards, I was told to go on board of the steamer Gladiator, 
then lying in the Thames, and examine and see if she had 
proper boats for landing her cargo in the surf on the Southern 
coast, if required, and report to Hughes. I did so, and 
reported that she had, with the exception of one boat. I was 
then ordered to take my things on board of that vessel, (the 
Gladiator,) and proceed in her to I^assau, and there either 
obtain a pilot for her, or else pilot her myself into some South- 
ern port of the Confederate States between Cape Carnaval, in 
Florida, and York Kiver, Virginia. I went aboard accord- 
ingly. That vessel was loaded with arms, ammunition and 
army outfits. After I got aboard, it was found that she could 
not carry all the cargo which had been bought for her, and, 
accordingly, what portion thereof could not be taken by the 
Gladiator was put aboard of the Stephen Hart, together with 
other like cargo to fill her up. I was ordered to proceed 
from the Gladiator, and take charge of the loading and fitting 
out of the Stephen Hart, which I did. On my recommenda- 
tion to Captain Hughes, Captain Dyett was appointed master 
of the Stephen Hart, while I was to go in her nominally as 
mate, but really in charge of the cargo, consisting of arras and 
munitions of war. The vessel proceeded down the Thames 



52 

several miles, and there took aboard a quantity of powder." 
Nell man testifies {Ird. 30) to the same effect as to tlie place 
where the powder was taken on board. Chadwick proceeds: 
" Before tiie Stepheii Hart left, I was instructed by Captain 
Hughes to proceed to Cuba, that is, to Cardenas,''and there to 
work under the instructions of Charles J. Helm, the agent for 
the " Confederate States" at that place. He said the cargo was 
to be transhipped into a steamer, which could be used with 
greater facility in running the blockade, or she might be 
ordered to proceed herself." The connection of Hughes with 
the transaction, and his being an agent for " the Confederate 
States," and the lader of the cargo on board of the Stephen 
Hart, are also testified to by Nellman, [Int. 16.) The con- 
tents of the letter of instructions to Captain Dyett confirm all 
that Chadwick says, on his re-examination, as to the connection 
of Helm with the matter, and as to the certain destination of the 
cargo and the contingent destination of the vessel being to a 
port of the enemy. It is stated by Nellman, [Int. 14,) that he 
heard Chadwick say that the cargo was going to the enemy's 
country, and {Lit. 24) that a steamer would receive it at Cu- 
ba very probably, and would carry it thence to a port of the 
enemy. And it is apparent, from what Nellman says, {Int. 
14-,) that it was understood, on board of the Stephen Hart, that 
the cargo was destined for a port of the enemy, and was to be 
carried there in that vessel, or to be transhipped to another 
vessel for the same purpose. Chadwick proceeds : " The 
agreement was, that I should have $45 a month for all the time 
I was employed, including any time I might be detained or im- 
prisoned, in consequence of any attempt to run the blockade ; 
and, if I had gone in the Gladiator, I was to have received a 
bounty of $500 ; and in the Stephen Hart, if ordered by Helm 
to cross the blockade, I was to have a bonus, to be agreed 
upon with him." The shipping articles confirm this state- 
ment of Chadwick's to a certain extent, as they show that his 
wages were to be £9 per month. They also show that the 
wages of the mate, whose place he took, were only £6 per 
month. He then goes on to state, as he had already stated in 



/^o 



53 



his aflBdavit upon which the order for his re-examination was 
made, that he was induced to state these facts, not by any 
persons in any way connected with the libellants or captors, 
but solely by the persuasions of his wife, " who is a loyal wo- 
man, and now residing in Boston." 

The absence from on board of the Stephen Hart of the bills 
of lading and manifest, to whose existence the master testifies, 
and of all invoices of the cargo, has been already referred to. 
The absence of these papers, in time of war, is a suspicious 
circumstance, as affecting the question of the neutrality of the 
cargo and the honesty of the trade. (1 Kent\ Comm. 157 ; Hal- 
leck on International Law^ chapter 25, section 25, page 622.) 

It has been strongly urged upon the Court, in the present 
case, that as Harris, the alleged owner of the vessel, is not 
shown to have any interest in any of the cargo, the vessel can 
be visited with no greater penalty for carrying contraband 
articles, even though they were intended for the enemy, than 
the loss of freight and expenses. But, even on the assumption 
that the grounds already set forth in respect to the real own- 
ership of the vessel, are not sufficient for her condemnation, 
the Court is of opinion that her condemnation must, under the 
circumstances, follow the condemnation of the cargo, the lat- 
ter being contraband of war, and intended, on its departure 
from England, to be carried into the enemy's country by a 
violation of the blockade. The contingent destination of the 
vessel to a blockaded port would be sufficient, under the au- 
thority of the case of The Eichmond, before cited, to warrant 
her condemnation. But, even if her destination was only to 
Cardenas, yet, as her cargo was intended, on its departure from 
England, to be introduced into the enemy's country, by being 
transhipped from the vessel at Cardenas, condemnation must 
equally follow, because of the employment of the vessel in 
this unlawful enterprise, under the circumstances disclosed in 
this case. As testified to by Captain Dyett, there was no 
charter-party for the voyage. He says that he was put in 
charge of the vessel, not by Harris, her alleged owner, but by 
S. Isaac, Campbell & Co., the claimants of the cargo. No 



54 

instrnctions from Harris to Captain Djett are found, but only 
instructions to him from S. Isaac, Campbell & Co. Harris, 
therefore, surrendered the entire control of his vessel to that 
firm, and her master must be regarded as their agent, and the 
claimant of the vessel must be held responsible for the use to 
which the master and the claimants of the cargo put the ves- 
sel. {Jecker v. Montgomery^ IS Howard, 110, 119.) That 
use was the carrying, for a portion of the distance on its way 
to the enemy's country, of a cargo contraband of war, intended 
for the use of the enemy, and. to enter the enemy's port by a 
violation of the blockade. This use of the vessel was, under 
the authorities before cited, unlawful in its inception, and, the 
entire transportation of the cargo from England to the ene- 
my's country being unlawful, the vessel must be condemned 
for having been permitted, by Harris, to be used, at the plea- 
sure of S. Isaac, Campbell & Co., in carrying out a portion of 
the unlawful purpose. Such use was, under the circumstances, 
in judgment of law, with the knowledge and assent of Harris. 
Chadwick, on his re-examination, [Int. 39,) states that Harris 
wished him to continue in the Stephen Hart as mate, " that 
either she would go to, or else he would put me on board of 
another vessel to go to the Confederate States." 

In the case of The Ringende Jacob, (1 Ch. Rob. 89,) Sir 
"William Scott says that, under the ancient law of Europe, the 
carrying of a contraband cargo rendered the vessel liable 
to condemnation ; but that, in the modern practice of the 
Courtsof Admiralty of England, a milder rule has been adopt- 
ed, and that the carrying of contraband articles is attended 
only with the loss of freight and expenses, " except where the 
ship belongs to the owner of the contraband cargo, or where 
the simple misconduct of carrying a contraband cargo has 
been connected with other malignant and asfc-ravated circum- 
stances." And he cites as an exception, a case attended with 
particular circumstances of falsehood and fraud, both as to 
the papers and the destination of the voyage, and in which 
there was an attempt, under colorable appearances, to defeat 
the rights of the belligerent. The same doctrine is laid down 



/^/ 



55 



in the case of The Jonge ToUas, (1 Ch. Rob. 329.) In the 
case of The Franklin, (3 Ch. Rob, 217,) a neutral vessel, osten- 
sibly bound to a neutral port, and whose cargo consisted of 
several articles which were contraband if going to the enemy, 
was held, by Sir William Scott, to have been captured while 
really on her way to a port of the enemy. He says : " I have 
had frequent occasion to observe that it is very difficult to de- 
tect a fraud of this species in the particular instances. Pre- 
tences and excuses are always resorted to, the fallacy of w^hich 
can seldom be completely exposed ; and therefore, without 
undertaking the task of exposing them in the particular case, 
the Court has been induced (and I hope not unwarrantably) 
to hold generally in each case that the certain fact shall pre- 
vail over the dubious explanations." " I am satisfied, on the 
facts of this case, that it was the plan of this voyage to carry 
the ship fraudulently, under a false destination, into a Spanish 
port. The consequence will be, that this fraudulent conduct, 
on the part of those who are concerned in the ship, will justly 
subject her to confiscation. Anciently, the carrying of con- 
traband did, in ordinary cases, affect the ship, and, although a 
relaxation has taken place, it is a relaxation, the benefit of 
which can only be claimed by fair cases. The aggravation of 
fraud justifies additional penalties." He then announces it as 
the settled rule of law, " that the carriage of contraband, with 
a false destination, will work a condemnation of the ship as 
well as the cargo." In that case the owner of the ship was 
not the owner of the cargo, but, being himself a neutral, had 
entered into a charter-party for a voyage of the vessel from one 
neutral port to another neutral port. In a note to the case, 
these very appropriate remarks are made : " The relaxation of 
the old rule has been directed, in its practical application, as 
well as in its origin, only to such cases as afi"ord a presumption 
that the owner was innocent, or the master deceived. Where 
the owner is himself privy to the transaction, or where his 
agent interposes so actively in the fraud as to consent to give 
additional cover to it by sailing with false papers, all pretence 
of ignorance or innocence is precluded, and there seems to be 
no further ground, consistent with equity and good sense, upon 



66 

which the relaxation in favor of the ship can any longer be 
supposed to exist." The same principles are laid down in the 
cases of The Mercurius, (1 C/i. Rob. 288,) The Edward, (4 Ch. 
Rob. 68,) and The Weutralitet, (3 Ch. Rob. 295.) In the lat- 
ter case, Sir William Scott says that, where a vessel is carry- 
ino" contraband articles nnder a false destination or false 
papers, those circumstances of aggravation constitute excepted 
cases out of the modern rule, and continue them in the 
ancient one. In The Ranger, (6 Ch. Rob. 125,) which was the 
case of an American vessel with a cargo which was documented 
for a neutral port, but was going to the enemy's port, and 
was condemned as contraband. Sir William Scott says : " I also 
condemn the vessel, as employed in carrying a cargo of sea 
stores to a place of naval equipment, under false papers. It is 
described, I perceive, as an American vessel. But, if the 
owner will place his property under the absolute management 
and control of persons who are capable of lending it, in this 
manner, to be made an instrument of fraud in the hands of 
the enemy, he must sustain the consequence of such miscon- 
duct on the part of his agent." In the Oster Risoer, (4 Ch. 
Rob. 199,) Sir William Scott held, that a master could not be 
permitted to aver his ignorance of the contents of contraband 
packages on board of his vessel; that he was bound, in time 
of war, to know the contents of his cargo ; and that, if a dif- 
ferent rule could be sustained, it might be applied to excuse 
the carrying of all contraband. 

One important circumstance, to show that the cargo of the 
Stephen Hart was intended for the enemy, is the fact that a 
part of it consisted of ninety thousand buttons, marked with 
the initials " C. S. A.," which it is well understood stand for 
the words " Confederate States of America," or " Confederate 
States' Army," the buttons being such as are used on army 
clothing for the three services of an army. 

This review of the facts in this case leads to the conclusion 
that the vessel and her cargo must both of them be con- 
demned. No doubt is left upon the mind that th'=>-'''~e is one 
of a manifest attempt to introduce contraband gdoas into the 



/^^- 



57 



enemy's territory by a breach of blockade, for which the ves- 
sel must be held liable to forfeiture, as well as her cargo. 
Chadwick was evidently employed by reason of his being a 
citizen of the United States, familiar with the enemy's coun- 
try, and qualified to conduct the vessel into one of the block- 
aded ports. The vessel was captured in a position convenient 
for running the blockade. The cargo consisted of arms, muni- 
tions of war and military equipments, and, among them, a 
large quantity of military buttons, stamped in such a manner 
as to render them capable of no appropriate use save for the 
infantry, cavalry and artillery of the enemy's army, thus 
showing that the enemy's country was their only appropriate 
destination. The absence of the manifest and bills of lading 
is not satisfactorily accounted for, and the want of any in- 
voices and of any charter-party is a circumstance of great 
weight against the lawfulness of the commerce. The attempt, 
by the master, to suppress his letter of instructions and the 
letter to Helm, the agent of the enemy in Cuba, and the at- 
tempt of the mate to conceal the letters which show that the 
design was, that the Stephen Hart should, under his guidance, 
enter a blockaded port of the enemy, and which also contain 
specific directions for entering the harbor of Charleston, jus- 
tify the conclusion that Charleston, or some other port of the 
enemy, was the real destination of the vessel and her cargo. 
The absence of any charter-party, and of any instructions 
from Harris to Captain Dyett, and the entire surrender by 
Harris of the control of the vessel to the laders of the cargo, 
and to the master as their agent, involve the vessel in all the 
guilt which attaches to the cargo. The object of carrying the 
flag of the enemy, could only have been that it might be used 
for the purpose of entering the enemy's ports — a conclusion 
strengthened by the fact that it was thrown overboard at the 
time of the capture. The charts found on board are charts of 
such a character as to enable a vessel to enter many of the 
blockaded ports. The letter concealed by the mate, which 
contains '^'i-'^ctions for entering the harbor of Charleston, is 
one which ^^ had a motive to preserve by concealing and not 



X'y^ 



58 

to destroy, because, upon the regular papers of the vessel, he 
must have indulged the hope that she would have been permit- 
ted, after a search, to proceed upon the voyage indicated by 
her papers, and thus, that the letter in question would after- 
wards become useful on a further voyage to the port of the 
enemy. There is an absence of all papers and circumstances 
to warrant the conclusion that there was any intent to dispose 
of the cargo at Cardenas, in the usual way of lawful com- 
merce. The consignee of the entire cargo was the agent of 
the enemy, and the cargo was laden on board by the agent of 
the enemy in London. The asserted ignorance of the master 
as to the contents of his cargo, and as to the fact that arms are 
contraband of war, and the ambiguous destination set out in 
the shipping articles, are circumstances which, with many 
others, go to swell the volume of suspicion attaching to the 
enterprise. In addition to all this, there is the positive evi- 
dence which has been referred to, particularly of Chadwick 
and Nellman, as to the actual destination of the cargo. All 
the material facts of the case, which lead to a condemnation, 
are proved without any resort to the re-examinations either 
of Leisk' or of Chadwick. 

This is not a case for further proof, and no application has 
b,een made on the part of the claimants to supply any further 
pil-p^f as to any point. There must, therefore, be a decree 
^q^d^efljining both the vessel and her cargo. 

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